UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


LAW  LIBRARY 
**<TO,TY  LIBHUB 


REPORTS 


ov 


DECISIONS  IN  CRIMINAL  CASES 


MADE 


AT  TERM,  AT  CHAMBERS 


AND   IN  THE 


COURTS  OF  OYER  AND  TERMINER 


OF  THE 


STATE  OF  NEW  YORK. 


AMASA  J.  PARKER,  LL.  U. 

One  of  the  Justices  of  the  Supi  erne  Court. 


VOL.  I. 


NEW    YORK: 
BANKS  &  BROTHERS,  LAW  PUBLISHERS, 

No.  144  NASSAU  STREET. 

ALBANY:    475   BROADWAY. 

1860. 


J 


6100        M 
<  A5ZP3 


Entered  according  to  act  of  Congress,  In  the  year  one  thousand  eight  hundred  and  fifty-five, 

BY  GOUJJD,  BANES  &  CO., 
in  the  clerk's  office  of  the  district  court  of  the  northern  district  of  New  York. 


U.  U. 

n    <-» 


PREFACE. 


The  want  of  Criminal  Reports  has  long  been  felt,  both  by 
the  Bench  and  the  Bar.  Very  few  decisions  in  criminal  cases 
have  found  their  way  into  the  Supreme  Court  Reports.  This 
has  been  owing  partly  to  the  fact  that,  until  very  recently, 
there  was  no  mode  provided  by  law  for  reviewing  a  decision 
made  against  the  Prosecution  by  a  court  of  Oyer  and  Termi- 
ner.  In  such  cases,  therefore,  the  decisions  made  at  the 
Oyer  and  Terminer  were  final. 

But  whether  we  regard  such  decisions  as  final,  or  as  the 
adjudications  of  the  highest  courts  of  original  criminal  juris- 
diction in  the  state,  all  must  concede  the  importance  of 
obtaining  authentic  reports  of  well  considered  cases  decided 
by  those  tribunals.  Without  such  reports,  uniformity  of 
decision  is  hardly  attainable,  and  little  progress  can  be 
made  in  settling  new  questions,  which  are  constantly  arising. 
With  them,  counsel  can  be  saved  much  labor  in  investigating, 
and  courts  can  have  the  benefit  of  the  reasoning  and  delibe- 
rate judgment  of  other  minds,  upon  the  same  questions. 
The  necessity  for  such  reports  is  as  obvious  and  as  urgent, 
as  is  that  which  has  led,  so  universally,  to  the  reporting  of 
decisions  in  civil  controversies. 

There  is  the  same  reason  for  reporting  the  opinions  deli- 
vered by  Justices  of  the  Supreme  Court,  at  Chambers,  in 
criminal  cases.  Such  opinions  are  generally  prepared  after 


iy  PREFACE. 

full  argument  and  are  the  result  of  deliberate  and  careful 
consideration. 

It  has  been  thought  also,  that  it  would  greatly  facilitate, 
the  investigation  of  questions  of  criminal  law,  to  collect  to- 
gether, in  the  same  volume,  the  decisions  made  at  the  Gen- 
eral Term,  at  Chambers  and  at  the  Oyer  and  Terminer. 

The  Reporter  has  had  in  view  the  accomplishment  of  these 
objects.  He  has  been  encouraged  in  this  undertaking  by  his 
brethren  upon  the  Bench,  to  whom,  he  takes  this  opportunity 
to  acknowledge  his  obligations,  for  materials  furnished.  In 
return,  he  hopes  he  shall  be  found  to  have  contributed  some- 
what to  assist  them  in  their  researches  and  conclusions,  by 
furnishing,  if  not  the  benefit  of  precedent  and  authority,  at 
least,  the  advantage,  as  in  consultation,  of  knowing  the 
opinions  of  those  of  equal  judicial  responsibility. 

If,  in  addition,  the  Reporter  shall  be  found  in  this  volume 
and  in  those  which  may  follow,  to  have  added  to  the  fund 
of  available  legal  learning,  by  preserving  the  reasoning  and 
conclusions  of  those  who  preside  in  our  highest  criminal  tri- 
bunals, and  to  have  lessened,  in  some  degree,  the  labors  of 
those  engaged  in  the  legal  profession,  he  shall  feel  that  he 
has  done  something  to  facilitate  the  administration  of  justice, 
and  shall  have  accomplished  all  he  had  ventured  to  antici- 
pate. 

Albany,  March  20,  1855. 


JUSTICES  OP  THE  SUPREME  COURT 


OF  THE 


STATE  OF  NEW  YORK, 

SINCE  THE  ADOPTION  OF  THE  CONSTITUTION  OF  1847, 


FIRST  JUDICIAL  DISTRICT. 

SAMUEL  JONES, 
ELISHA  P.  HURLBUT, 
JOHN  W.  EDMONDS, 
HENRY  P.  EDWARDS, 
WILLIAM  MITCHELL, 
JAMES  G.  KING,  JUN., 
JAMES  J.  ROOSEVELT, 
ROBERT  H.  MORRIS, 
THOMAS  W.  CLERKE, 
EDWALlD  P.  COWLES. 

SECOND  JUDICIAL  DISTRICT. 

SELAH  B.  STRONG, 
WILLIAM  T.  McCOUN, 
NATHAN  B.  MORSE, 
SEWARD  BARCULO, 
JOHN  W.  BROWN, 
WILLIAM  ROCKWELL, 
GILBERT  DEAN. 

THIRD  JUDICIAL  DISTRICT. 

WILLIAM  B.  WRIGHT, 
IRA  HARRIS, 
MALBONE  WATSON, 
AMASA  J.  PARKER. 


Ti  JUSTICES  OF  THE   SUPREME  COURT. 

FOURTH  JUDICIAL  DISTRICT. 

DANIEL  CADY, 
ALONZO  C.  PAIGE, 
JOHN  WILLARD, 
AUGUSTUS  C.  HAND, 
CORNELIUS  L.  ALLEN, 
AMAZIAH  B.  JAMES, 
AUGUSTUS  BOCKES. 

FIFTH  JUDICIAL  DISTRICT. 

CHARLES  GRAY, 
DANIEL  PRATT, 
PHILO  GRIDLEY, 
WILLIAM  F.  ALLEN, 
FREDERICK  W.  HUBBARD, 
WILLIAM  J.  BACON. 

SIXTH  JUDICIAL  DISTRICT. 

WILLIAM  H.  SHANKLAND, 
HIRAM  GRAY, 
CHARLES  MASON, 
EBEN  B.  MOREHOUSE, 
LEVINUS  MONSON, 
SCHUYLER  CRIPPEN. 

SEVENTH  JUDICIAL  DISTRICT. 

THOMAS  A.  JOHNSON, 
JOHN  MAYNARD, 
HENRY  WELLES, 
SAMUEL  L.  SELDEN, 
HENRY  W.  TAYLOR, 
THERON  R.  STRONG. 

EIGHTH  JUDICIAL  DISTRICT. 

JAMES  G.  HOYT, 
JAMES  MULLETT, 
SETH  E.  SILL, 
RICHARD  P.  MARVIN, 
MOSES  TAGGART, 
LEVI  F.  BOWEN, 
BENJAMIN  F.  GREEN. 

NOTE.— In  addition  to  decisions  made  by  the  Justices  of  the  Supreme  Court, 
Ihis  volume  contains  decisions  made  before  the  adoption  of  the  present  judiciary 
i)  stem,  by  Hon.  Reuben  Hyde  Walworlh,  as  chancellor  and  circuit  judge,  and 
by  Justices  Willard,  Parker  and  Edmonds,  while  acting  as  circuit  judges. 


CASES 


REPORTED  IN  THIS  VOLUME. 


The  People  v.  Alger, 333 

The  People  v.  Allen, 445 

The  People  v.  Austin, 154 


B 


Baron  v.  The  People, 246 

In  the  matter  of  Belt. 169 

The  People  v.  Burns  and  Cary, . .  182 

The  People  v.  Burroughs, 211 


c 


The  People  v.  Caesar, 645 

The  People  v.  Carnal, 256 

The  People  v.  Carnal, 262 

The  People  v.  Carnal, 272 

The  People  v.  Cavanagh, 588 

Clarke  v.  The  People, 347 

The  People  v.  Clarke, 360 

Colt  v.  The  People, 611 

Crozier  v.  The  People, 453 


D 


In  the  matter  of  Da  Costa, 129 

Davis  v.  The  People, 447 

Dennis  v.  The  People, 469 

The  People  v.  Derby, 392 


The  People  v.  Finnegan, 
Miller  v.  Finkle, 


G 

Gahaean  v.  The  People,, 

The  People  v.  Gay, 

The  People  v.  Graham, . 
The  People  v.  Green,  . .. 
The  People  v.  Grunzig,  . 


H 

The  People  v.  Harriden, 

In  the  matter  of  Heilbonn, . . . 
The  People  v.  Henderson,.... 

The  People  v.  Henries, 

The  People  v.  Hendrickson, . . 
Hendrickson  v.  The  People,. . , 
Houghtaling  v.  Kelderhouse, . 


The  People  v.  L.  Johnson,. . , 
The  People  v.  M.  Johnson,. , 


147 
374 


378 
308 
141 
11 
299 


344 
429 
560 
579 
396 
406 
241 


564 
291 


Tiii 


CASKS  HEPORTED. 


K 


R 


Houghtaling  v.  Eelderhouse, . . .     241 

In  the  matter  of  Kirk, 67 

The  People  v.  Knickerbocker, . . .   302 


Lake  v.  The  People, 495 

M 

The  People  v.  Mack, 567 

Mackay  v.  The  People, 459 

The  People  v.  Maloney, 593 

The  People  v.  Martin, 187 

The  People  v.  McDaniels, 198 

The  People  v.  McGinnis, 387 

The  People  v.  Mclntyre, 371 

In  the  matter  of  Metzger, 108 

Miller  v.  Finkle, 374 

The  People  v.  Moneghan, 570 

Morris  v.  The  People, 441 

The  People  v.  Morrison, 625 

o 

The  People  v.  Orcutt, 252 

P 

The  People  v.  Phillips, 95 

The  People  v.   Potter, 47 

Q 

The  People  v.  Quin, 340 


Reed  v.  The  People, 481 

The  People  v.  Robinson, 649 


s 


Saflbrd  v.  The  People, 474 

The  People  v.  Shaw, 327 

The  People  v.  Sheriff  of  Westchester, 

659 

The  People  v.  C.  A.  Smith, 329 

E.  Smith  v.  The  People, 317 

Smith  and  Bunce  v.  The  People..  583 

The  People  v.  Stein, 202 

The  People  v.  Stockham, 424 

Sullivan  v.  The  People, 347 

The  People  v.  Sullivan, 360 

The  People  v.  Swan. 9 


The  People  v.  Thayers, 595 

The  People  v.  Tompkins,   224 


The  People  v.  Van  Steenburgh , . . .  29 

The  People  v.  Videto, 603 

w 

The  People  v.  Warren, 338 

The  People  v.  Wayne  Sessions, . .  369 

Whalen  v.  The  People, 44 1 

Woodin  v.  The  People, 464 


DECISIONS 

CRIMINAL    CASES 

IN  THE 

STATE  OF  NEW  YORK. 


SARATOGA  OYER  AND  TERMINER,  December  1839.     Before  Wil- 
lard,  Circuit  Judge,  and  the  County  Judges. 

THE  PEOPLE  vs.  GERRET  SWAN. 

The  finder  of  property,  who  knows  the  owner,  or  has  reason  to  believe  who 
ke  is,  is  bound  to  restore  it,  and  is  guilty  of  larceny,  if  he  fraudulently  con- 
verts it  to  his  own  use. 

The  prisoner  was  indicted  for  grand  larceny,  in  feloniously 
stealing  a  pocket  book,  containing  one  hundred  dollars  in  mo- 
ney, the  property  of  Alonzo  Howland,  on  the  first  day  of  May 
1839,  at  Stillwater. 

It  appeared  in  evidence  that  the  prosecutor,  about  five  o'clock 
P.  M.  of  the  first  of  May,  went  into  a  necessary,  in  the  rear  of 
Mr.  Lawrence's  store,  in  Stillwater,  on  a  call  of  nature,  and 
laid  his  pocket  book,  containing  $100,  on  the  bench,  and  came 
out  without  it.  In  ten  or  fifteen  minutes  afterwards,  he  missed 
it,  and  went  back  after  it,  and  it  was  gone.  The  necessary  was 
on  premises  owned  by  the  prosecutor,  and  was  used  by  Mr. 
Elmore,  a  shoemaker,  who  occupied  a  shop  on  the  same  pre- 
mises, and  his  hands.  The  prisoner  was  a  journeyman  of  Mr. 
Elmore,  and  absconded  the  following  night;  was  pursued  to 
Albany  and  found  with  the  pocket  book  in  his  possession,  and 
a  part  of  the  money.  A  portion  of  the  money  he  had  paid  out 

VOL.  I.  2 


JQ  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Swan. 

for  a  suit  of  clothes,  which  was  also  given  up.  The  pocket 
book  contained  receipts  given  to  the  prosecutor,  in  which  his 
name  was  inserted  at  length.  It  was  proved  that  the  prisonei 
could  read;  that  he  told  the  officer,  when  he  was  arrested,  that 
when  he  first  found  it  he  supposed  it  belonged  to  Mr.  Lawrence, 
but  on  opening  it,  and  finding  the  receipts,  he  knew  it  belonged 
to  the  prosecutor.  He  said  if  he  got  another  pocket  book  he 
would  know  what  to  do  with  it;  that  the  officer  would  not  get 
it  so  easily.  The  officer  had  to  search  him  before  it  was  found. 

Bloore,  for  the  prisoner,  insisted  that  the  pocket  book  had 
been  lost,  and  that  the  prisoner  was  the  bonajide  finder  of  it, 
and  could  not  be  convicted  of  larceny,  by  a  fraudulent  conver- 
sion. He  cited  The  People  v.  Anderson,  14  J.  R.  294 

Ellis  (Dist  Att'y)  cited  The  People  v.  McGowan,  17  Wend. 
460. 

WILLARD,  Circuit  Judge  (after  recapitulating  the  evidence 
and  defining  the  crime  of  grand  larceny),  observed:  It  has  been 
said  that  if  a  man  lose  goods,  and  another  find  them,  and  not 
knowing  the  owner  converts  them  to  his  own  use,  it  is  no  larceny. 
This  rule  supposes  that  the  finder  acts  bonajide,  is  ignorant  of 
the  owner,  and  may,  therefore,  have  a  warrantable  ground  to 
suppose  that  the  goods  will  never  be  claimed,  and  the  owner 
will  never  be  discovered.  Such  seems  to  have  been  the  view 
of  the  supreme  court  in  the  case  of  The  People  v.  Jlnderson, 
cited  by  the  prisoner's  counsel.  The  particulars  of  that  case 
are  not  detailed,  but  it  is  assumed  that  the  owner  had  lost  the 
goods,  and  that  the  defendant  was  an  honest  finder. 

The  law,  however,  clearly  holds  a  prisoner  guilty  criminally 
who  knowing  the  owner,  converts  the  property  to  his  own  use. 
It  is  the  duty  of  the  finder  to  restore  property  which  he  has 
found  to  the  rightful  owner,  and  if  there  are  marks  upon  it,  by 
which  the  owner  can  be  ascertained,  or  if  he  has  reasonable 
ground  to  believe  who  the  owner  is,  he  will  be  guilty  of  lar- 
ceny if  he  convert  it  to  his  own  use. 


RENSSELAER,  JULY,  1845. 


The  People  v.  Green. 


In  the  present  case,  the  pocket  book  and  money  can  not  be 
said  to  have  been  lost,  in  the  strict  technical  sense  of  the  term 
The  prosecutor  left  it  by  accident,  for  a  few  minutes,  in  an  un- 
usual place,  but  knew  where  it  was  left.  If  the  prisoner,  when 
he  discovered  it,  had  no  reasonable  ground  to  believe  that  it 
had  been  abandoned  by  its  owner,  or  that  its  owner  never 
would  be  found  —  if  he  knew  whose  property  it  was,  before  he 
converted  it  to  his  own  use  —  if  he  took  no  means  to  restore  it 
to  its  owner,  but  on  the  contrary  fled  and  endeavored  to  con- 
ceal it,  and  appropriated  it  to  his  own  use,  the  jury  will  be 
warranted  in  finding  him  guilty. 

The  jury  found  the  prisoner  guilty  and  he  was  sentenced  to 
the  state  prison  for  three  years  and  six  months. 


RENSSELAER  OYER  AND  TERMINER.  July  1845.  Before  Parkert 
Circuit  Judge,  and  Davis,  Bull  and  Waite,  County  Judges 

THE  PEOPLE  vs.  HENRY  G.  GREEN. 

• 

On  a  trial  for  murder,  the  dying  declarations  of  the  deceased,  that  is,  declara- 
tions made  under  the  apprehension  of  death,  are  competent  evidence  against 
the  prisoner;  but  before  such  declarations  are  received,  it  must  be  satisfacto- 
rily proved  that  the  deceased,  at  the  time  of  making  them,  was  conscious  of 
the  danger  and  had  given  up  all  hope  of  recovery. 

Where,  by  the  direction  of  the  attending  physician,  and  in  his  presence,  W.  in- 
formed the  deceased  on  the  day  before  her  death,  that  she  could  not  live, 
whereupon  the  deceased  requested  the  physician  to  hear  a  communication 
that  she  desired  to  make,  and  with  his  consent  she  proceeded  to  give  a  history 
of  the  conduct  of  the  prisoner  during  her  illness,  tending  to  show  that  he 
had  several  times  during  such  illness,  administered  arsenic  to  her,  held  that 
snch  communication  was  admissible,  as  her  dying  declaration. 

Where,  on  the  trial  of  a  capital  case,  several  witnesses  are  to  be  examined  to 
the  same  point,  the  court  may  in  its  discretion  require  all  such  witnesses, 
except  the  one  under  examination,  to  leave  the  room,  during  such  examina- 
tion. 

The  possession  by  a  prisoner  of  an  unanswered  letter,  found  in  his  pocket,  at 
the  time  of  his  arrest,  is  not,  of  itself,  evidence  of  the  contents,  and  it  can  not 
be  read  in  evidence  against  him  on  the  trial. 


12  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Green. 

The  maxim,  qui  tacct  contentire  videtur  is  not  applicable  to  such  a  case;  nor  is 
it  generally  applicable,  except  to  verbal  conversations  and  to  certai.  com- 
munications in  writing  in  mercantile  transactions.  It  can  not  be  app  xl  to 
facts  stated  in  a  letter  which  a  pany  is  not  bound,  or  interested  to  ans\  T. 

Where  a  party  has  called  a  witness,  and  proved  by  him  a  conversation  '\ad 
with  the  opposite  party,  the  party  whose  conversation  has  been  proved  \.?  n 
not,  on  cross-examination,  prove  by  the  witness  a  subsequent  conversation 
between  the  party  cross-examining  and  the  witness,  which  took  place  two  or 
three  hours  after  the  first  conversation,  though  such  subsequent  conversation 
was  upon  the  same  subject  as  the  first  conversation  and  in  explanation 
ofit.  * 

And  though  the  party  calling  the  witness  prove  the  fact  that  there  was  a 
subsequent  conveisation,  that  does  not  entitle  the  party  cross-examining  the 
witness  to  prove  what  was  said  at  such  suosequent  conversation. 

What  facts  must  be  established  to  convict  on  the  trial  of  an  indictment  for 
murder — the  distinction  between  positive  and  circumstantial  evidence  and  the 
comparative  reliability  of  each — the  reasons  for  proving  and  the  character 
and  value  of  dying  declarations  —  the  question  of  motive,  —  and  the  cases  in 
which  the  accused  may  avail  himself  of  a  previous  good  character — stated 
and  discussed  in  the  charge. 

Form  of  a  warrant  of  execution  (no*e  a). 

The  prisoner,  Henry  G.  Green,  was  indicted  for  the  murder 
of  Mary  A.  Green,  his  wife,  by  poisoning  her  with  arsenic,  and 
pleaded  to  the  indictment  not  guilty.  The  cause  came  on  to  be 
fried  at  the  Rensselaer  oyer  and  terminer,  on  the  7th  July,  1845, 
before  Parker,  circuit  judge,  and  Davis,  Bull  and  Waite,  county 
judges.  The  trial  occupied  two  weeks,  the  evidence  relied 
upon  by  the  prosecution  being  mostly  circumstantial.  About 
fifty  witnesses  were  examined. 

It  was  proved  on  the  trial,  that  the  prisoner  was  married  to 
the  deceased  on  Sunday  the  10th  February,  1845:  that  both  the 
prisoner  and  the  deceased  were  about  22  years  of  age;  that  on 
the  Friday  next  after  the  marriage,  the  deceased  wa»  4aken  ill 
and  died  on  the  Monday  following. 

Most  of  the  circumstances  which  it  is  necessary  to  understand, 
for  the  purpose  of  presenting  the  questions  of  law  decided  on  the 
trial,  are  sufficiently  stated  in  the  charge  of  the  court. 

Evidence  was  introduced  on  the  part  of  the  prosecution  for 
the  purpose  of  laying  a  foundation  for  proof  of  the  dying  decla- 
rations of  the  deceased 


RENSSELAER,  JULY,   1S43.  13 

The  People  v.  Green. 

Emerson  Hull,  a  physician,  who  attended  her  in  her  last 
illness,  testified  that  on  Sunday  afternoon,  about  6  o'clock,  he 
had  come  to  the  conclusion  that  her  prospect  of  recovering  was 
entirely  hopeless;  that  her  brother,  David  W.  Wyatt,  inquired 
of  him  what  he  thought  of  her  case,  and  he  replied  he  thought 
she  could  not  live  through  the  night,  and  that  they  had  better 
communicate  it  to  his  sister;  that  Wyatt  did  communicate  it 
to  her.  He  said  to  her  in  substance,  "  Mary,  the  Doctor  thinks 
you  can't  live,"  or  words  to  thai;  effect,  and  she  answered, 
"Must  I  die  and  not  see  my  mother?"  That  some  little  time 
afterwards,  Mr.  Wyatt  said  to  the  witness,  "  My  sister  wants  to 
make  a  communication  to  you  before  she  dies,"  and  witness 
then  returned  with  Wyatt  to  the  chamber  where  she  was,  took 
a  chair  and  sat  down  by  her  bed,  and  told  her  he  understood  she 
wanted  to  make  a  communication  to  him.  She  said  she  did. 

David  W.  Wyatt  corroborated  this  statement  of  Doct.  Hull, 
and  testified  that  his  sister  asked  the  witness  if  the  doctor  had 
given  her  up;  that  witness  told  her  they  had;  that  she  then  said 
there  was  something  she  wished  to  say  to  Doct.  Hull,  and  wit- 
ness went  immediately  and  called  him. 

The  counsel  for  the  prosecution  here  offered  to  prove  what 
the  deceased  said  to  Doct.  Hull,  in  the  absence  of  the  prisoner, 
on  the  ground  that  what  she  said  was  her  dying  declarations. 

The  counsel  for  the  prisoner  objected  to  this  evidence,  L 
Because  such  declarations  were  inadmissible,  and  2.  That  a 
proper  foundation  had  not  been  laid,  and  that  it  did  not  suf- 
ficiently appear  that  the  deceased  expected  immediate  death, 
and  cited  1  Cow.  &  HilVs  Notes,  611,  note  457:  M'JVally  Ev. 
386. 

The  court  decided  that  it  had  been  satisfactorily  proved  that 
the  deceased  was  conscious  of  her  danger  and  had  given  up  all 
hope  of  recovery,  and  that  the  case  was  therefore  brought 
within  one  of  the  exceptions  to  the  rule  excluding  hearsay 
evidence,  and  the  court  overruled  the  objection  and  received 
the  evidence,  to  which  the  counsel  for  the  prisoner  excepted. 

Before  taking  the  evidence,  the  court,  at  the  request  of  the 
prisoner's  counsel,  required  all  the  witnesses,  who  were  to  be 


14  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Green. 

examined  as  to  the  dying  declarations  of  the  deceased,  to  leave 
the  room  during  the  examination,  on  that  subject,  of  Doct. 
Hull.  The  court  held  that  such  requirement  was  entirely  a 
matter  of  discretion  in  the  court,  to  be  exercised  according  to 
the  circumstances  of  each  case,  in  such  manner  as  should  seem 
best  adapted  to  the  furtherance  of  justice.  The  court  expressed 
the  opinion  that  this  was  a  proper  case  for  the  separation  of 
the  witnesses,  and,  under  the  directions  of  the  court,  all  the 
witnesses  on  this  branch  of  the  case  left  the  room  during  the 
examination  of  Doct.  Hull. 

Doct.  Hull  then  testified  to  the  dying  declarations  as  follows: 
The  deceased  said,  that  after  taking  the  pills  that  Ht-nry  gave 
her  on  Friday,  she  had  been  in  great  distress;  that  it  seemed 
sometimes  as  though  she  could  not  live.  She  said,  "  I  had  such 
a  burning  heat  through  me,  that  it  seemed  as  if  I  could  not  live 
a  minute.  She  said,  Henry  has  been  feeding  me  with  white 
powrder  ever  since  I  took  those  pills.  He  has  put  it  into  almost 
every  thing  he  has  given  me;  he  has  put  it  into  my  coffee  and 
into  my  broth  and  almost  all  my  drinks.  Yesterday  I  asked  him 
for  some  wine  and  water.  He  got  some,  turned  his  back  toward 
me,  took  a  paper  out  of  his  pocket,  and  dusted  something  into 
it  which  was  white;  he  gave  it  to  me;  I  asked  him  what  it  was 
he  put  into  it,  and  he  said  a  little  flour  I  dusted  in  it.  I  drank 
it  and  it  distressed  me  very  much."  At  this  time  she  appeared 
to  be  worried,  and  I  remarked  to  her  that  her  communication 
was  of  such  a  nature,  that  I  would  be  glad  if  she  would  com- 
municate it  to  some  other  person.  She  said  she  would  endeavor 
to.  I  then  called  on  Mr.  Barzaleel  Streeter,  and  asked  if  he 
would  consent  to  sit  by  and  hear  her  communication.  He  said 
he  would,  and  took  a  chair  and  sat  down  by  the  bed,  and  I 
remained  in  the  room.  I  could  not  understand  what  she  said 
to  Mr.  Streeter.  She  was  very  feeble  at  that  time,  and  spoke 
in  a  low  whisper.  Her  mind  was  unimpaired  as  far  as  I  could 
judge;  remarkably  so.  An  exception  was  taken  by  the  pri 
soner's  counsel  to  the  admission  of  this  evidence. 

The  prisoner's  counsel  then  called  Barzaltel  Streeter,  who 
testified  on  this  point  as  follows:     On  Sunday  evening  Mrs. 


RENSSELAER,  JULY,   184u. 


The  People  v.  Green. 


Green  made  a  communication  to  me.  Doct.  Hull  proposed  it 
She  said  to  me,  "  I  am  dying,  and  wish  to  communicate  to  you 
what  I  have  seen  and  heard,  before  I  die."  She  said  Henry 
offered  her  pills  on  Friday  and  she  refused  to  take  them.  She 
said,  "  I  did  not  consider  my  ill  health  serious  and  thought  it  not 
proper  to  take  pills;  he  urged  them  upon  me  and  told  me  they 
would  make  me  feel  better.  I  took  them.  Such  a  feeling  as 
those  pills  made  me  have  I  never  experienced  before;  I  became 
numb  all  over;  my  eyelids  drawed  down  and  I  could  not  keep 
them  apart;  I  began  to  vomit  terribly,  with  a  terrible  feeling 
at  my  stomach,  the  most  deathly  feeling  I  ever  experienced. 
*  *  *  After  that  Henry  brought  me  a  powder;  I  saw  him  take 
something  from  his  vest  pocket  and  put  into  it;  after  he  offered 
it  to  me  I  asked  him  what  he  put  in.  He  said,  '  nothing  but  a 
little  flour.'  He  brought  me  some  drink  afterwards}  a  white 
substance  appeared  in  it.  I  asked  him  what  it  was.  He  said, 
"  A  little  soda.'  '  The  witness  then  stated  that  Mrs.  Green, 
at  this  point,  had  become  very  weak,  and  said  she  must  rest; 
could  not  tell  me  any  thing  more  then,  but  would  after  resting; 
that  she  never  resumed  the  communication  to  the  witness.  All 
this  evidence  was  also  objected  to,  for  the  reasons  before  stated, 
and  an  exception  taken  by  the  prisoner's  counsel  to  its  ad- 
mission. 

David  W.  Wyatt,  the  brother  of  the  deceased,  was  also  ex- 
amined to  the  same  point.  His  evidence  was  objected  to  by  the 
prisoner's  counsel,  for  the  reasons  before  stated,  and  also  on  the 
additional  ground  that  such  dying  declarations,  if  admissible 
at  all,  must  be  confined  to  the  cause  of  her  death.  The  court 
received  the  evidence,  and  the  prisoner's  counsel  excepted. 

The  witness  testified  that  after  the  communication  was  made 
by  the  deceased  to  B.  Streeter,  and  about  12  o'clock  at  night 
on  Sunday  night,  she  made  a  communication  to  him.  The  wit- 
ness then  related  what  she  told  him  about  the  pills  and  their 
effect  upon  her,  as  stated  by  Doct.  Hull  and  Mr.  Streeter,  and 
then  added:  She  said,  Henry  administered  to  her  a  powder  a 
number  of  times;  that  he  had  mixed  powder  with  the  doctor's 
medicine,  in  almost  every  thing  that  he  had  given  her  She 


16 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Green. 


said,  she  had  found  that  everything  he  had  given  her  distressed 
her,  and  she  thought  she  would  take  notice  how  he  prepared  the 
broth  he  gave  her,  on  Sunday  morning.  She  said,  he  took  a 
paper  from  his  pocket  (putting  her  hand  to  her  side),  and  put 
something  in  it  and  put  the  paper  back  into  his  pocket.  When 
he  came  to  the  bed  with  it,  she  asked  him  what  he  put  in  it. 
He  said  he  put  a  little  flour  in  it  I  asked  her  why  she  drinked 
it.  She  said  she  could  not  believe  he  meant  to  poison  her,  and 
she  drank  a  part  of  it.  That  after  she  found  how  sick  it  made 
her,  she  refused  to  take  anything  he  prepared. 

Witness  also  stated,  that  just  before  this  conversation,  she 
said  she  was  poisoned  to  death,  and  that  it  was  repeated  a 
number  of  times  during  the  night.  That  about  3  o'clock  she 
said,  "  He  has  poisoned  rne  to  death."  I  asked  who,  and  she 
said  "  Henry."  She  died  about  10  o'clock  next  morning,  and 
witness  was  with  her  till  a  few  minutes  before  she  died.  It 
was  proved,  on  the  part  of  the  prisoner,  by  Porter  G.  Dennison, 
that  on  Monday  morning,  about  6  o'clock,  her  brother  asked 
her  if  she  knew  what  made  her  so  sick,  and  she  said,  "  Oh!  no; 
there  is  one  that  does  know,  and  he  knows  all  things." 

It  was  proved  on  the  part  of  the  prosecution,  that  when  the 
prisoner  was  arrested,  there  was  found,  in  his  pocket,  a  letter 
from  his  mother.  The  counsel  for  the  prosecution  then  produced 
and  offered  to  prove  and  read  in  evidence  the  following  letter: 

TROT,  Feb.  20th,  1845. 

"  DEAR  SON — It  is  with  the  greatest  anxiety  that  I  write  to 
you  at  this  time.  I  feel  to  mourn  with  you  at  this  time,  if 
weeping  would  do  any  good,  but  my  head  has  been  so  hot  that 
I  can't  shed  a  tear  to-day.  I  am  almost  distracted  that  they  will 
prove  you  are  guilty.  If  that  should  be  the  case  I  am  undone 
and  so  are  you  and  all  the  rest  of  the  family.  Henry,  tell  me, 
are  you  innocent?  and  don't  deceive  me.  Henry,  I  have  been 
sorry  that  I  have  told  you  the  reports  that  I  heard,  that  I  could 
weep  night  and  day.  I  did  wrong  in  telling  them  to  you  at  all, 
as  I  did  not  think  it  would  make  you  dislike  your  wife  at  all, 
— as  you  told  me  you  loved  her  and  married  her  for  love.  If 


RENSSELAER,  JULY,  1845.  ]  7 

The  People  v.  Green. 

so,  how  could  you  wish  to  do  so  very  wrong.  If  you  had  been 
deceived  in  any  way,  you  could  have  left  her  in  an  honorable 
way.  You  told  me  she  was  a  virtuous  girl  and  I  have  be- 
lieved you.  And  I  have  been  sorry  that  I  told  you  any  hearsay 
reports,  as  I  don't  believe  them  at  all.  If  this  should  be 
the  cause  of  any  thing  that  has  happened,  I  shall  weep  night 
and  day  as  I  did  not  wish  to  make  you  unhappy  at  all.  Will 
you  forgive  me,  and  will  God  forgive  me.  Oh,  I  ask  it  in  so- 
lemn prayer  to-night.  As  the  case  will  soon  be  decided,  be 
careful  what  you  say  and  do,  for  your  life  depends  on  it.  I 
want  to  see  you  very  much  indeed.  Write  to  me  once  and  let 
me  know  the  whole  matter.  As  soon  as  you  get  this — without 
delay — do  it.  Let  no  one  see  this,  on  no  account.  I  remain 
your  sincere  friend  and  mother,  till  death  me  part.  Good  bye 
till  we  meet  again.  SALLY  GREEN. 

HENRY  G.  GREEN." 

In  support  of  the  aclmissibility  of  the  evidence,  the  Attorney 
General  cited  1  Green.  Ev.  §  198;  2  Starkie  Rep.  123;  3  Carr. 
fy  Payne,  103;  5  ib  75;  RUSH  fy  Ryan  Cr.  Cases,  264. 

After  hearing  argument  and  examining  the  letter,  the  court 
said  it  was  well  settled  that  the  maxim,  qui  facet  consentire 
videtur,  was  applicable  to  verbal  conversations,  where  there  was 
a  statement  made  in  a  party's  presence,  which  was  not  denied 
by  him.  In  such  case  the  party  had  an  opportunity  to  deny 
the  statement  at  once,  and  not  doing  so,  there  was  good  reason 
for  supposing  he  could  not  controvert  it.  The  maxim  had  also 
been  applied,  as  between  the  parties,  to  certain  mercantile  deal- 
ings, as  where  an  account  current  was  sent  to  the  party  by 
letter,  and  no  objection  made  to  it  within  a  given  time,  estab- 
lished by  convenience  or  by  commercial  usage  (1  Cow.  fy  Hill's 
Notes,  194,  and  cases  there  cited).  But  it  could  not,  in  prin- 
ciple, be  applicable  to  facts  stated  in  a  letter  which  the  party 
was  not  bound,  nor  interested,  to  answer.  It  would  be  placing 
a  man  entirely  at  the  mercy  of  others,  if  he  was  to  be  bound  by 
what  others  chose  to  assert,  in  addressing  letters  to  him.  In  no 
sense,  could  his  silence  be  considered  an  admission  of  such 

VOL.  I.  3 


..  g  DECISIONS  IN  CRIMINAL  CASES. 

The  People  r.  Green. 

facts.  On  the  trial  of  Home  Tooke  (25  State  Trials,  130),  Cfc 
J.  Eyre  said,  that  letters  found  in  the  defendant's  possession 
were  producible  and  prima  facie  evidence;  but  he  admitted 
their  effect  would  very  much  depend  upon  the  circumstance 
whether  answers  to  them  could  be  traced,  and  whether  any  thing 
had  been  done  upon  them.  For  a  general  rule,  this  is  too  broadly 
stated.  I  concede  that  there  may  be  cases  where  such  evidence 
is  admissible,  as  where  the  letter  is  the  foundation  to  explain 
some  subsequent  and  consequent  action  on  the  part  of  the  ac- 
cused, or  to  enable  the  jury  to  understand  the  answer  ma  Je  to 
the  letter,  or  where  the  letter  is  from  a  person  proved  to  be  a 
coconspirator  (2  Starkie  Rep.  123).  But  it  can  not  be  appli- 
cable to  any  case  where  the  letter  only  tends  to  support  a  charge 
of  guilt  in  regard  to  a  past  transaction,  and  where  it  has  been 
followed  by  no  action  and  no  response  on  the  part  of  the  person 
receiving  the  letter.  In  Rex  v.  Plumer  (Russ.  fy  Ry.  Cr.  Cas. 
264),  it  was  held,  that  though  a  letter  found  on  a  prisoner  may 
be  read,  it  is  no  evidence  of  the  facts  it  states.  There  was 
reason  for  reading  the  letter  in  that  case,  which  does  not  exist 
in  this  case,  for  the  prisoner,  a  postoffice  clerk,  was  on  trial  for 
stealing  a  bill  of  exchange  from  the  letter  in  question,  and  the 
letter  was  not  addressed  to  the  prisoner  but  to  a  third  person. 
In  Fairlee  v.  Denton  (3  Carr.  fy  Payne,  103),  Lord  Tenterden 
said,  "  What  is  said  to  a  man  before  his  face,  he  is  in  some 
degree  called  on  to  contradict,  if  he  does  not  acquiesce  in  it; 
but  the  not  answering  a  letter  is  quite  different;  and  it  is  too 
much  to  say  that  a  man,  by  not  answering  a  letter  at  all  events, 
admits  the  truth  of  the  statements  it  contains.  I  am  of  opinion 
this  letter  can  not  be  read."  The  opinion  seems  now  to  be 
established,  as  stated  by  Greenleaf  in  his  note  3  to  sec.  198, 
that  the  possession  of  unanswered  letters  is  not,  of  itself,  evi- 
dence of  the  contents.  See  also  2  Hall  Rep.  40;  Cow.  &  Hill 
Notes,  191,  195,  and  cases  there  cited. 

The  court  then  decided  that  the  letter  could  not  be  read  in 
evidence,  and  excluded  the  testimony,  to  which  decision  the 
counsel  for  the  people  excepted. 

At  a  later  stage  of  the  trial  the  counsel  for  the  prosecution 


JIF.NSSELAER.  JULY,  1845. 


The  People  v.  Green. 


proved  by  Richard  Rose,  the  jailor,  a  conversation  he  had  with 
the  prisoner,  after  relating  which  the  witness  stated,  that  some 
two  or  three  hours  afterwards  he  conversed  with  the  prisoner 
again.  On  his  cross-examination,  the  prisoner's  counsel  of- 
fered to  prove  by  the  witness  what  the  prisoner  said  at  such 
subsequent  conversation,  on  the  same  subject  as  at  the  first 
conversation  and  in  explanation  of  it;  but  it  was  objected 
to  by  the  counsel  for  the  prosecution.  The  court  decided,  that 
the  prisoner  could  not  prove  his  own  declarations  made  in  his 
own  behalf,  at  a  different  time  from  that  inquired  into  on  the 
other  side;  and  that  the  proving  by  the  prosecution  of  the  fact 
of  a  subsequent  conversation,  without  proving  anything  said 
at  that  time,  did  not  entitle  the  prisoner  to  prove  what  he  said 
upon  that  occasion. 

The  court  excluded  the  evidence,  and  the  prisoner's  counsel 
excepted. 

The  jury  were  addressed  by 

Job  Pierson  and 

Joshua  Jl.  Spencer,  for  the  Prisoner,  and  by 

M.  I.  Townsend  (District  Attorney)  and 

John  Van  Bur  en  (Attorney  General)  for  the  People. 

PARKER,  J.,  in  charging  the  jury,  after  speaking  with  com- 
ix- ^ndation  of  the  patient  attention  with  which  the  jury  had 
h  tened  to  the  trial,  proceeded,  in  substance,  as  follows: 

To  all  concerned,  the  case  is  one  of  importance.  To  the 
piisoner  at  the  b^r  it  is  most  certainly  one  of  vast  importance 
—  for  his  life  hangs  on  the  issue.  To  the  public  it  is  of  infi- 
nitely great  importance  —  because  the  good  order  of  community 
depends  on  the  prompt  and  faithful  administration  of  justice, 
and  the  punishment  of  crime,  where  crime  is  proved  to  have  been 
committed.  It  is  of  no  less  importance  to  you,  who  are  acting 
in  the  discharge  of  a  duty  which  you  have  solemnly  engaged 
to  perform  faithfully,  and  according  to  the  evidence.  And  for 
the  manner  in  which  you  discharge  that  duty  you  will  be  held 
hereafter  to  a  just  accountability  to  your  own  consciences  and 
to  God. 


20  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Green. 

I  repeat,  the  patience  with  which  you  have  listened  to  this 
long  trial,  and  to  the  arguments  of  counsel,  satisfy  me  that  you 
do  feel  the  importance  of  the  considerations  I  have  suggested, 
and  that  you  will  endeavor  to  do  your  whole  duty.  This  is  a 
case  certainly  of  a  most  extraordinary  character.  In  examining 
the  cases  of  capital  crimes  recorded  in  the  books,  there  is 
nothing  to  be  found  precisely  of  this  character — nor  is  there 
any  thing  like  it  in  the  experience  of  any  connected  with  the 
courts.  A  young  man  just  entering  on  'ife — scarcely  twenty- 
two  years  of  age — connected  with  some  cf  the  most  respectable 
families  in  the  county,  stands  indicted  not  inly  for  the  highest 
crime  known  to  our  laws,  but  for  the  murd.  ~  of  his  wife — and 
that,  too,  of  a  wife  to  whom  he  had  been  married  but  a  very  few 
days. 

I  have  spoken  of  the  standing  of  the  prisoner's  friends,  and 
much  has  been  said,  by  counsel  on  both  sides,  on  this  subject — 
and  appeals  have  been  made  to  you  on  both  sides,  based  on  this 
circumstance.  The  standing  of  these  friends  should  have  no 
influence  on  your  opinions  one  way  or  the  other.  Jt^must 
matter  nothing  to  you  whether  the  prisoner  is  a  humble  and 
friendless  man,  or  whether  worthy  and  wealthy  citizens  are 
standing  by  him,  to  secure  to  him  all  the  rights  and  all  the 
favor  that  are  to  be  had  in  such  a  case.  All  persons  are  to  be 
dealt  with  equally  and  justly  by  you.  The  public  look  to  this 
court  for  a  faithful  and  just  administration  of  the  law — and 
for  an  honest,  upright,  pure  discharge  of  the  duties  devolved 
upon  it.  All  classes  of  community,  whether  of  high  or  low 
degree,  are  equally  concerned  in  the  faithful  and  honest  ad- 
ministration of  the  laws.  Unless  the  fountain  of  justice  be  pure, 
those  who  have  acquired  wealth  by  their  industry  can  not  be 
protected  in  the  enjoyment  of  theii  acquisitions;  and  the  hum- 
ble citizen  can  look  no  where  but  to  the  integrity  of  the  courts 
for  protection  against  the  power  and  influence  of  those  above 
him.  I  am  confident  you  will  enter  on  the  discharge  of  the 
great  duty  devolving  on  you,  by  excluding  from  your  minds  all 
considerations,  whether  urged  on  one  side  or  the  other,  con- 
nected  with  the  standing  of  the  prisoner  or  his  friends.  They 


REXSSELAER,  JULY,  1845.  21 

The  People  v.  Green. 

should  not  influence  your  verdict  in  any, — the  slightest  par- 
ticular. 

The  proof  in  this  case  shows — and  I  speak  of  facts  which  are 
not  contradicted — that  early  last  winter  the  prisoner  at  the  bar 
became  acquainted  with  the  deceased — that  a  few  weeks  after- 
wards they  were  married — that  on  the  Tuesday  following  the 
marriage  he  brought  his  wife  to  Berlin,  the  place  of  his  resi- 
dence. That  on  Friday  she  was  taken  ill — that  on  Saturday  a 
physician  was  called,  and  that  on  Monday  morning  she  died. 
These  leading  facts  are  not  contradicted — and  it  becomes 
therefore  unnecessary  that  I  should  call  you  attention  more 
minutely  to  the  testimony  in  regard  to  them. 

To  find  the  prisoner  guilty  of  the  crime  charged  against  him, 
certain  jther  facts  must  be  established  beyond  a  reasonable 
doubt  It  must  be  shown  not  only  that  the  person  charged  to 
have  been  murdered  is  dead — and  the  fact  is  not  disputed,  but 
that  she  came  to  her  death  by  poison  administered  with  a  design 
to  effect  her  death.  And  a  further  and  more  important  fact 
must.be  shown.  You  must  be  satisfied  that  that  was  the  act  of 
the  prisoner  at  the  bar.  These  stern  facts  must  be  established 
beyond  a  reasonable  doubt,  before  you  can  say  the  prisoner  is 
guilty.  When  they  are  so  established,  you  have  no  alternative 
but  to  pronounce  your  verdict  accordingly. 

Was  Mrs.  Green  poisoned?  And  did  she  die  of  poison?  Per 
haps  I  may  properly  remark  that  that  fact  seems  now  to  be  hardly 
contradicted.  The  proof  is  that  when  Doct.  Hull  was  called  in 
on  Saturday,  her  symptoms  were  those  of  poison.  He  prescribed, 
however,  for  another  disease.  Her  symptoms  continued, 
throughout,  the  same.  And  the  proof  is  that  the  body  was 
opened  after  death — the  stomach  and  adjoining  parts  of  the 
sesophagus  and  duodenum  were  taken  out  and  brought  to  this 
city,  examined  by  chemists  and  physicians  and  properly  sub- 
jected to  the  usual  tests  to  ascertain  the  presence  of  arsenic. 
There  were  found  in  the  stomach  and  about  it,  some  six  grains 
of  arsenic.  It  is  conceded  that  four  and  a  half  grains  will  pro- 
duce death;  and  though  no  recorded  case  is  found  where  life 
has  been  destroyed  by  less  than  that  quantity,  yet  physicians 


22  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Green. 

hold  that  a  less  quantity  will  produce  death.  You  have  heard 
the  opinion  of  these  physicians,  and  the  comments  of  counsel 
thereon.  They  assign,  and  they  could  ascertain,  no  other  cause 
for  the  death  of  Mrs.  Green.  There  was  arsenic  enough  found 
in  the  stomach  to  have  caused  her  death.  And  this  fact,  taken 
in  connection  with  the  symptoms,  renders  it  hardly  worth  while 
to  consider  it  a  controverted  point. 

If  then  she  came  to  her  death  by  poison,  the  next  and  far  the 
most  important  question  to  be  settled  is,  was  it  administered 
with  a  design  to  take  her  life,  and  was  that  the  act  of  the  pri- 
soner? Did  he  commit  the  murder?  Did  he  designedly  administer 
the  arsenic  that  caused  her  death?  And  this  fact  must  be  satis- 
factorily and  reasonably  established  to  authorize  a  conviction. 

It  is  true,  as  claimed  on  the  part  of  the  prisoner,  that  the 
evidence  adduced  in  support  of  this  part  of  the  case  is  circum- 
stantial. If  a  person  witnesses  the  very  act  of  taking  life,  and 
swears  he  saw  it,  that  would  be  direct  and  positive  evidence. 
But  in  all  cases  where  no  one  witnesses  the  commission  of  a 
murder,  but  where  it  is  inferred  from  circumstances,  it  is  called 
circumstantial  evidence,  and  in  such  case,  it  is  on  such  evidence 
that  a  jury  convict,  if  they  convict  at  all. 

Much  has  been  said  of  the  nature  of  circumstantial  evidence, 
and  of  the  credit  that  ought  to  be  given  to  it.  When  a  witness 
appears  before  you  and  swears  that  he  saw  the  fatal  blow  struck, 
or  the  act  done  which  deprives  another  of  life,  the  only  question 
left  is,  does  he  swear  to  the  truth?  Does  he  commit  perjury,  or 
is  he  mistaken  in  regard  to  the  circumstance  named?  When 
evidence  is  circumstantial,  it  may  be  in  some  cases  more  satis- 
factory than  positive  evidence.  As,  for  instance,  when  a  cir- 
cumstance is  proved  by  many  witnesses,  or  where  similar  cir- 
cumstances, tending  to  the  same  point,  are  proved  by  different 
witnesses,  or  when  circumstances  are  shown  beyond  all  doubt, 
which  lead  necessarily  to  one  conclusion  and  are  irreconcilable 
with  any  other,  they  may  be  more  satisfactory  than  direct  or 
positive  testimony.  In  both  cases,  it  is  possible  that  injustice 
may  be  done.  From  the  nature  of  human  tribunals,  whether 
th<»  evidence  be  positive  or  circumstantial,  in  all  cases  there  is 


REXSSELAER,  JULY,   1845. 


The  People  v.  Green. 


a  possibility,  a  bare  possibility,  that  perjury  may  be  committed. 
But  in  all  these  cases,  you  are  bound  to  take  the  evidence 
as  true  that  is  given  by  the  witnesses,  whether  positive  or 
circumstantial,  if  there  be  nothing  in  the  case  to  shake  their 
credibility,  or  to  authorize  you  to  doubt  the  statement  made, 
especially  when  the  statements  concur  to  support  each  other, 
and  where  there  is  no  contradiction  between  them.  Because  a 
jury  can  not  arbitrarily  discard  testimony,  whether  positive  or 
circumstantial.  In  both  cases  you  should  scrutinize  the  evi- 
dence, and  see  whether  there  is  any  reason  to  believe  that  the 
witness  swears  falsely  or  is  mistaken;  and  when  the  facts  are 
established  beyond  all  question,  you  are  to  see  to  what  infer- 
ences they  necessarily  lead  your  mind's. 

In  examining  the  evidence  as  to  the  point  whether  the  pri- 
soner is  proved  to  have  committed  the  act  charged,  it  is  claimed 
on  the  part  of  the  prosecution,  and  the  counsel  insist  that  they 
have  proved,  that  he  had  arsenic — that  he  had  it  in  his  pos- 
session at  the  time.  It  was  proved  that  there  was  arsenic  at 
Denniston  &  Streeter's  store.  It  is  shown  who  had  possession 
of  the  key  and  who  were  in  there  on  Sunday;  that  one  of  the 
owners  of  the  store,  on  going  in,  that  afternoon,  found  the  jar 
of  arsenic  out  of  its  place  and  the  cover  partly  removed.  He 
tells  you  that,  about  four  o'clock  that  afternoon,  the  prisoner 
came  to  him  and  got  the  key  to  get  oats  for  his  horse — that  he 
was  gone  a  few  moments  and  returned  with  the  oats.  Il  is 
claimed  by  the  prosecution,  that  there  is  enough  in  these  cir- 
cumstances to  lead  your  minds  to  the  conclusion,  that  the  pri- 
soner (who  was  the  last  person  in  the  store  before  the  owner 
went  in  at  five)  must  have  taken  arsenic  from  the  jar.  It  is 
claimed  also  on  the  part  of  the  prosecution,  that  originally  there 
were  nine  or  ten  papers  of  arsenic  in  the  jar,  and  that  this 
number  was  reduced  to  seven  when  the  investigation  by  the 
coroner  was  had,  and  that  one  paper  only  had  been  sold;  and 
that  this  is  a  circumstance,  in  connection  with  the  other  men- 
tioned, to  show  that  one  of  the  papers  was  taken  by  the  prisoner. 
Now,  doubtless,  this  is  evidence  of  considerable  importance, 
though  by  no  means  controlling.  If  it  be  satisfactorily  estab- 


24  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Green. 

lished  that  he  took  arsenic  from  the  store  on  Sunday  afternoon, 
that  would  not  account  for  the  use  of  it  by  the  prisoner  before: 
and  much,  if  not  all  the  evil  that  was  done  was  by  arsenic  ad- 
ministered before  that  time.  But  it  is  claimed  on  the  part  of 
the  prisoner,  that  the  missing  papers  were  sold  previously;  and 
two  witnesses  have  sworn  that  sometime  in  the  fall  or  winter 
they  purchased  arsenic  at  this  store — each  one  paper.  And 
the  question  is,  whether  the  papers  purchased  were  purchased 
before  the  nine  or  ten  papers  came  into  the  hands  of  Denniston 
&  Streeter.  They  tell  you  they  purchased  it  on  the  16th  of 
December  last:  and  it  is  for  you  to  say,  from  the  evidence  on 
both  sides,  whether  the  papers  sold  were  sold  before  or  after 
the  16th  of  December. 

But,  as  I  before  said,  I  by  no  means  regard  this  as  a  controll- 
ing circumstance  in  the  case,  whether  the  fact  be  established 
or  not,  that  the  prisoner  took  arsenic  on  Sunday  from  this  store. 
For  if  no  other  be  traced  to  his  possession  before  Sunday,  the 
arsenic  claimed  to  have  been  administered  on  Saturday,  and  on 
Friday  in  the  pills,  is  not  accounted  for.  There  is  other  evi- 
dence that  the  prisoner  had  possession  of  arsenic  before  Sunday. 
I  allude  to  the  testimony  of  Mr.  Daniel  B.  Green.  On  Friday 
or  Saturday  before  the  death  of  this  woman,  Mr.  Green  had  a 
conversation  in  a  bar  room  with  the  prisoner,  in  which  conver- 
sation he  admitted  that  he  had  arsenic.  This,  certainly,  is 
important  evidence  in  the  case.  For  if  you  are  satisfied  that 
the  prisoner  had  the  means  of  committing  the  crime  charged,  it 
is  one  step  towards  the  establishing  of  his  guilt. 

It  is  further  claimed  by  the  prosecution,  that  the  prisoner 
administered  arsenic  to  the  deceased,  and  there  are  very  many 
circumstances  tending  to  establish  that  point.  And  I  do  not 
intend,  on  the  present  occasion,  to  call  your  attention  minutely 
to  this  mass  of  evidence,  because  the  counsel  on  both  sides 
have  examined  it  more  or  less  closely  and  have  presented  it  to 
vou  in  all  its  bearings.  It  is  all  fresh  in  your  recollection.  It 
is  my  duty,  however,  to  call  attention  to  the  leading  points  in 
it,  to  state  the  issues  involved  in  the  trial,  and  which  must  have 
an  important  influence  in  bringing  your  minds  to  a  conclusion; 


RENSSELAER,  JULY,  1845.  25 


The  People  v.  Green. 


and  to  submit  the  case  to  you  under  suggestions  merely  of  that 
character.  But  to  a  few  of  these  circumstances  it  is  my  duty 
to  advert. 

The  proof  is,  that  Doct.  Hull  was  called  in  on  Saturday. 
One  circumstance  occurred  at  that  time  which  has  been  the 
subject  of  some  comment,  and  that  is,  that  when  Doct.  Hull 
recommended  warm  water,  to  rinse  the  stomach  of  the  sick 
woman,  the  prisoner  objected.  Now  it  has  been  urged  on  one 
side  that  this  objection  was  made  from  motives  of  humanity — 
from  a  belief  that  she  had  vomited  enough,  and  that  it  should 
be  checked  rather  than  provoked.  But  it  is  urged  on  the  other 
side,  and  with  considerable  force,  that  if  the  warm  water  had 
been  administered,  as  Doct.  Hull  recommended,  the  deceased 
might  throw  up  some  of  the  poison  wrhich  it  is  claimed  the 
prisoner  had  previously  given  her,  and  thus  not  only  betray  the 
cause  of  her  illness,  but  relieve  the  stomach,  and  perhaps  save 
her  life.  You,  gentlemen,  must  pass  on  this  evidence — you 
must  say  what  inferences  are  to  be  drawn  from  it — and  come  to 
some  satisfactory  result  as  to  the  motive  of  the  prisoner  in  ob- 
jecting to  the  warm  water  at  that  time. 

Another  circumstance  urged  by  the  prosecution,  is,  that  on 
Saturday  afternoon  the  prisoner  came  down  stairs  with  a  tum- 
bler two-thirds  full  of  water  and  a  white  powder  in  it,  or  rather 
at  the  bottom  of  it.  He  said  it  was  soda,  and  asked  for  some  sal- 
aeratus  to  put  in  it,  for  his  wife.  The  salaeratus  was  put  into  the 
tumbler,  and  he  then  went  into  the  hall,  and  was  gone  long 
enough  to  have  gone  to  his  wife's  room,  and  to  have  admin- 
istered it,  and  then  came  down  to  dinner.  It  is  claimed  on 
the  part  of  the  prosecution,  that  the  white  powder  in  the  tum- 
bler, before  the  salaeratus  was  added,  was  arsenic;  that  he 
needed  some  pretence  to  cover  up  or  disguise  the  arsenic,  and 
therefore  applied  for  salaeratus.  Because,  it  is  urged,  there 
could  be  no  propriety,  and  it  can  scarcely  be  supposed  the 
prisoner  believed  there  was  any,  in  mixing  two  alkalis — sal- 
auratus  and  soda.  You,  gentlemen,  must  judge  of  this  circum- 
stance, and  give  to  it  such  weight  as  you  think  it  entitled  to 

Again,  it  is  claimed  that  on  the  same  Saturday  in  the  after- 

VOL.  I.  4 


26  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Green. 

noon,  Dr.  Hull  having  forbidden  the  deceased  to  take  drinks 
within  an  hour  at  least,  the  prisoner,  within  a  quarter  of  an 
hour  of  the  time  when  this  injunction  was  given,  prepared  some- 
thing white  in  a  tumbler  and  gave  it  to  his  wife,  and  she  drank 
it.  And  it  is  said  "the  prisoner  was  present  when  Dr.  Hull  pro- 
hibited drinks  as  stated.  It  is  claimed  by  the  prosecution,  that 
this  was  arsenic,  and  being  administered  in  a  liquid  against  the 
doctor's  instructions  was  proof  that  the  prisoner  was  not 
governed  by  honest  motives  in  doing  the  act  in  question.  But 
you,  gentlemen,  must  judge  what  weight  is  to  be  given  to  this 
circumstance. 

Again,  on  the  part  of  the  prosecution,  it  is  claimed  that  on 
the  same  night,  or  during  the  night  —  the  time  I  believe 
has  been  fixed  at  about  one  o'clock,  Mrs.  Whitford,  who  had 
been  watching  with  the  deceased,  had  been  out  half  an  hour, 
and  on  her  return  to  the  sick  room  Mrs.  Green,  the  deceased, 
said  to  her  that  the  prisoner,  during  her  absence,  had  adminis- 
tered to  her  a  powder,  and  that  she,  knowing  that  the  doctor 
had  left  two  powders,  but  had  not  directed  them  to  be  given, 
looked  upon  the  table  and  found  both  powders  still  there.  And 
it  is  urged  further,  by  the  prosecution,  that  this  powder,  thus 
administered  without  directions  from  the  physician,  was  not 
one  of  the  powders  left  by  him,  and  that  in  no  way  consistently 
with  the  prisoner's  innocence  can  it  be  shown  why  he  admin- 
istered it.  And  it  is  claimed  by  the  prosecution  that  this  too 
was  arsenic. 

In  regard  to  this  statement  of  the  deceased,  I  should  say  to 
you  that  it  was  not  made  as  her  dying  declaration.  It  is  not 
therefore  of  itself  evidence,  unless  said  in  the  hearing  of  the 
prisoner.  In  that  case  it  would  be  evidence. 

Now  the  proof  is  that  the  prisoner  was  then  on  a  bed  in  the 
same  room,  the  situation  of  which  has  been  described  to  you; 
and  if  you  are  satisfied  from  the  evidence  that  he  heard  what 
was  said  on  Mrs.  Whitford's  coming  into  the  room,  then  it 
would  be  evidence.  If  not,  it  is  barely  a  statement  of  the  de- 
ceased and  is  not  evidence. 

It  is  claimed  also  by  the  prosecution  that  soon  after  this 


RENSSELAER,  JULY,  1845.  27 


The  People  v.  Green. 


occurrence,  he  offered  her  some  crust  coffee,  which  she  refused 
to  take;  that  on  the  same  Saturday  night  the  prisoner  sat  by 
the  fire  stirring  some  soup  in  a  bowl,  and  mixing  white  lumps 
that  appeared  on  the  surface;  and  doubtless  here  we  have  im- 
portant evidence.  It  appears  some  chicken  broth  had  been 
prepared  for  her;  that  it  was  taken  to  her  room  in  the  evening, 
and  had  been  administered  to  the  deceased.  And  the  proof  is 
introduced  by  the  prosecution  that  on  that  night  Mrs.  Whitford 
saw  the  prisoner  by  the  fire  with  some  of  this  broth,  stirring  it 
with  a  spoon  and  mixing  what  appeared  to  be  white  lumps  in 
it,  mashing  them  against  the  side  of  the  bowl.  It  is  claimed 
on  the  part  of  the  prosecution  that  that  was  arsenic.  If  it  was, 
then  it  partakes  much  of  the  character  of  direct  evidence.  It  is 
claimed  by  the  prosecution  that  the  soup  in  the  bowl  thus 
stirred  must  have  been  administered  to  the  deceased,  because 
in  the  morning  very  little  of  it  was  left  in  the  bowl,  except  a 
sediment  having  a  white  curdled  appearance,  which  was  taken 
out,  analyzed  and  found  to  be  arsenic. 

It  is  also  claimed  by  the  prosecution  —  and  this  is  important 
evidence  —  that  on  this  night,  after  this  preparation  of  the  soup, 
Mrs.  Whitford,  who  was  watching  with  the  deceased,  during  a 
short  absence  of  the  prisoner  from  the  room,  at  the  suggestion  of 
Mrs.  Green,  searched  to  see  what  she  could  find;  that  she  found  a 
spoon  lying  on  the  table,  having  in  it  a  powder,  a  white  powder, 
extending  half  the  length  of  the  bowl  of  the  spoon;  that  she 
preserved  it  in  a  paper,  and  it  is  claimed  that  this  same  powder, 
thus  preserved,  upon  analysis  was  found  to  be  arsenic.  Doubt- 
less this  is  most  important  evidence.  Because,  it  is  claimed 
that  no  one  but  the  prisoner  would  have  brought  arsenic  there; 
that  all  the-witnesses  called,  and  all  who  assisted  and  attended 
the  deceased,  swear  they  had  no  arsenic  and  brought  none  there. 
The  physicians  state  that  there  was  nothing  of  the  kind  in  the 
medicine  they  left;  and  therefore  it  is  urged  with  force,  that  the 
fact  that  the  arsenic  was  found  in  the  bowl,  after  the  soup  was 
prepared  by  the  prisoner  with  the  white  powder  —  he  only, 
his  sick  wife  and  Mrs.  Whitford  being  in  the  room  —  furnisJ.es 


28 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v    Green. 


strong  evidence  against  him  that  he  used  it  and  left  it  there  in 
the  spoon,  and  that  this  is  strong  evidence  of  his  guilt. 

On  the  same  night,  it  is  claimed,  and  the  prosecution  have 
proved  by  Mr.  Hull  and  Mrs.  Whitford,  that  the  crust  coffee 
had  on  it  a  white  powder.  This  alone  would  be  of  much  less 
importance.  It  is  only  by  taking  all  the  circumstances  to- 
gether that  they  carry  with  them  the  weight  as  claimed  for 
them  by  the  prosecution.  Mrs.  Whitford  also  states  that  on 
the  same  night  she  saw  the  prisoner  stirring  something  in  a  tea 
cup,  and  that  at  the  same  time  there  was  a  white  powder  on  it 
in  lumps.  These  are  the  principal  circumstances  that  occurred 
on  Saturday  afternoon  and  night. 

Some  things  occurred  on  Sunday  worthy  of  note.  Mrs. 
Whitford  and  Mrs.  Brimmer  swear  that  on  Sunday  morning  the 
white  curdled  substance  found  in  the  bottom  of  the  bowl  in 
which  the  soup  was,  was  taken  out  and  preserved.  It  was 
analyzed  and  foun  I  to  be  arsenic.  And  perhaps  I  should  say 
that  on  the  part  of  the  prisoner,  a  very  minute  examination  has 
been  gone  into,  to  ascertain  if  this  powder  could  have  been 
changed.  -  Here  were  two  different  papers  of  powders  taken  by 
two  different  persons  —  one  from  the  spoon  and  the  other  from 
the  soup  bowl  —  both  of  which  were  delivered  to  the  coroner, 
by  him  delivered  to  the  chemist,  and  by  him  analyzed  and  found 
to  be  arsenic.  The  attempt  has  been  made  on  the  part  of  the 
prisoner  to  show  that  it  had  been  changed.  It  is  for  you  to  say 
whether  there  is  any  probability  whatever  that  such  a  trans- 
action could  have  happened. 

On  Sunday  at  10  o'clock,  or  about  that  time,  it  is  proved  by 
Mrs.  Hull,  Mrs.  Brimmer  and  Mrs.  Streeter,  that  ^the  prisoner 
offered  the  deceased  some  red  drops  in  a  teaspoon,  and  that 
there  was  white  powder  in  the  spoon.  They  state  that  they 
asked  him  what  medicine  it  was,  and  he  made  no  reply.  That 
on  Sunday  afternoon,  after  the  prisoner  had  been  to  the  store 
of  Denniston  &,  Streeter  to  get  the  oats  for  his  horse,  Mr. 
Wyatt,  the  brother  of  the  deceased,  came  into  the  sick  room 
and  found  the  prisoner  mixing  white  powder  in  a  tumble  <^f 


RENSSELAER,  JULY,  1845.  29 

The  People  v.  Green. 

vjater;  that  he  offered  it  to  his  wife  and  she  refused  to  take  it, 
and  at  Wyatt's  special  request  the  prisoner  left  him  to  take 
charge  of  Mrs.  Green. 

There  is  other  e/idence  also  adduced  on  the  part  of  the  pro- 
secution; among  other  things,  the  dying  declaration  of  the  de- 
ceased. It  is  proved  by  Mr.  Wyatt,  that  she  stated  to  him  that 
the  prisoner  gave  her  a  white  powder  in  some  wine  on  Satur- 
day; that  she  wanted  some  wine  and  water;  that  he  turned  his 
back  to  her,  took  from  his  vest  pocket  a  white  po  .vder  and  put 
into  it;  that  she  asked  him  what  it  was  he  had  put  in,  and  he 
said  it  was  flour. 

These  occurrences  are  relied  on  by  the  prosecution  to  show 
that  arsenic  was  administered  to  the  deceased  by  the  prisoner; 
and  it  is  claimed  that  here  is  a  train  of  circumstances  all  tend- 
ing to  one  conclusion;  that  he  continued  to  administer  to  her, 
from  time  to  time,  some  white  powder,  not  only  not  authorized 
by  the  physician,  but  against  his  positive  directions;  and  that 
in  two  of  these  cases  the  powder  wTas  preserved,  analyzed  and 
found  to  be  arsenic. 

But  there  is  another  branch  of  evidence  bearing  strongly  on 
this  point.  I  allude  to  the  dying  declarations  of  the  deceased. 
This  evidence  was  not  admitted  without  time  for  examination 
and  reflection;  because  it  is  evidence  of  great  importance,  and 
should  not  be  resorted  to  unless  clearly  admissible,  more  espe- 
cially in  a  case  of  this  moment.  In  this  case  it  is  proved  that 
the  deceased  was  very  ill,  suffering  indeed  under  great  torture. 
Wyatt,  her  brother,  applied  to  the  physicians,  that  he  might 
understand  the  true  state  of  her  case.  The  proof  is  they  told 
him  she  could  not  live;  that  Wyatt  communicated  that  to  his 
sister,  and  that  after  this  communication  the  deceased,  believing 
she  wras  about  to  die,  requested  and  had  an  interview  with  Dr. 
Hull,  to  whom  she  made  the  statements  that  are  familiar  to  you. 
That  subsequently  Barzaleel  Streeter  was  called  in,  and  a 
similar  statement  was  made  by  her  to  him,  and  afterwards  to 
Mr.  Wyatt.  These  declarations  are  proved  by  these  three  wit- 
nesses; and  if  made  under  the  circumstances  claimed,  after  she 
was  informed  and  when  she  believed  that  she  could  not  live, 


30 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v    Green. 


then  they  become  evidence  in  the  case;  because,  if  living,  in  a 
case  of  that  character,  she  could  be  a  witness  to  testify  to  the 
facts  to  convict  him  of  an  attempt  to  poison.  But  having  died 
under  the  effects  of  poison,  the  law  still  permits  her  to  be  a 
witness  in  this  way — by  showing  her  dying  declarations  made 
under  a  deep  sense  of  her  situation,  and  when  it  is  to  be  believed 
she  spoke  the  truth.  Now  on  the  dying  declarations,  as  well 
as  on  the  other  circumstances  alluded  to,  the  prosecution  relies 
to  satisfy  you  that  she  was  poisoned  by  the  prisoner  at  the  bar. 

Without  going  minutely  into  these  declarations,  they  were 
substantially  these:  That  the  prisoner  advised  her  to  take  pills  on 
Friday;  that  she  took  them  unwillingly,  not  believing  she  was 
in  a  situation  to  require  them.  That  soon  after  she  was  seized, 
with  these  violent  symptoms,  vomiting,  distress,  a  burning  sen- 
sation in  the  stomach.  She  stated  her  continued  suffering,  from 
that  time  down  to  the  period  when  these  declarations  were 
made;  and  further  that  in  all  the  medicine  that  Henry  (the  pri- 
soner) had  given  her  since,  there  was  mingled  a  white  powder; 
sometimes  .in  wine,  again  in  soup,  again  in  the  crust  coffee,  and 
on  the  other  occasions  mentioned.  These  are  generally  her 
statements,  and  they  are  introduced  on  the  part  of  the  prose- 
cution to  show  that  it  was  the  prisoner  that  administered  to  her 
this  white  substance,  and  which  caused  her  death.  This  is  com- 
petent evidence.  If  you  are  satisfied  that  these  declarations 
were  made  under  a  sense  that  she  was  about  to  die,  they  are 
entitled  to  great  weight  as  testimony.  And  it  is  lor  you  to  give 
them  such  weight  as  you  may  deem  them  entitled  to,  contrast- 
ing them  with  other  proof  in  the  case,  and  seeing  if  they  are. 
sustained  by  that  evidence. 

It  is  further  urged  by  the  prosecution  that  they  have  proved 
an  evident  intention  throughout,  on  the  part  of  the  prisoner,  to 
poison  his  wife.  And  it  is  argued  that  there  could  have  been 
no  accident  or  mistake  on  his  part,  in  this  continued  adminis- 
tration of  poison,  as  is  claimed,  in  her  food,  as  well  as  in  her 
drinks,  and  that  there  are  other  circumstances  going  to  show  a 
deliberate  design  throughout,  and  such  as  exclude  all  possibility 
of  accident  or  absence  of  design  on  the  part  of  the  prisoner. 


RENSSELAER,  JULY,  1645. 


The  People  v.  Green. 


It  is  proved  that  he  called  on  Dr.  Rhodes  xm  Friday  morning 
to  get  pills,  and  stated  to  Dr.  R.  that  he  wanted  them  for  him- 
self; and  it  is  claimed  that  this  declaration  of  the  prisoner  was 
a  concealment  and  a  falsehood,  going  to  show  a  dishonest  mo- 
tive in  obtaining  the  pills.  It  is  claimed  also  that  what  took 
place  between  Wyatt,  the  brother  ef  the  deceased,  and  the  pri- 
soner, in  regard  to  the  condition  of  his  sister,  on  Saturday  after- 
noon, shows  that  he  was  governed  by  design  in  what  he  did — 
that  he  told  Wyatt  that  she  was  asleep  and  better,  when  it  is 
claimed  to  have  been  proved  that  she  was  in  fact  worse.  And 
it  is  urged  that  he  made  that  communication  to  lull  him  into  a 
false  security;  and  that  after  his  wife's  death  the  prisoner 
declined  to  order  a  coffin,  and  it  is  claimed  that  his  general 
conduct  throughout  the  sickness  of  his  wife  was  not  such  as 
evinced  affection  or  a  desire  to  effect  her  recovery. 

Without  commenting  on  all  the  evidence  bearing  on  this 
point  (and  there  is  evidence  on  both  sides),  it  is  enough  for  me 
to  say,  that  you  must  look  carefully  at  the  whole  history  of  the 
case,  as  detailed  in  the  evidence,  and  say  whether  there  did 
seem  to  be  that  anxiety  and  care  on  the  part  of  the  prisoner, 
which  a  husband  would  naturally  exhibit  in  such  a  case.  Two 
witnesses  have  been  produced  on  the  part  of  the  defence,  Avho 
state  that  on  one  occasion,  he  spoke  of  her  as  being  very  ill  and 
cried;  and  that  in  one  case,  after  her  death,  he  interfered  to 
arrange  her  hair.  On  the  part  of  the  prosecution,  they  rely  on 
other  witnesses  who  were  present  at  this  time,  more  or  less  by 
the  bedside  of  the  sick  woman,  and  it  is  claimed  to  have  been 
shown  that  on  the  part  of  the  prisoner,  there  was  a  marked 
absence  of  that  care  and  anxiety  which  is  expected  in  cases 
where  there  exists  this  relation  of  husband  and  wife,  and  which 
are  always  found  where  honesty  of  motive  and  sincere  affection 
really  exist.  You  must  judge,  from  all  the  evidence  before  you 
(giving  the  prisoner  in  all  eases  the  benefit  of  every  reasonable 
doubt),  whether  his  conduct  was  consistent  with  the  relation  in 
which  he  stood  with  the  deceased. 

Before  you  can  convict  the  prisoner  at  the  bar,  you  must  be 
satisfied  not  only  that  this  woman  was  murdered  by  poison,  but 


52  DECISIONS  IN  CRIMIXAL  CASES. 

The  People  v.  Green. 

that  the  prisoner  administered  it  to  her,  with  the  design  to  take 
her  life.     This  is  indispensable  to  the  crime  of  murder.     It  is 
claimed  on  the  part  of  the  prisoner,  that  no  such  design  could 
have  been  entertained;  that  the  relations  existing  between  the 
parties  forbid  the  supposition;  and  it  is  urged  that  there  was  no 
adequate  motive  on  his  part,  and  that  none  had  been  proved,  for 
the  commission  of  the  offence.  I  think  there  can  be  no  difficulty 
as  to  what  the  law  is  on  this  point.     Your  own  common  sense 
will  lead  you  to  a  just  conclusion.     If  you  see  one  deliberately 
take  the  life  of  another,  or  if  you  have  satisfactory  evidence  of 
the  fact,  doubtless  there  is  a  motive  for  the  act.     It  is  evident 
from  the  act  itself.     You  see  it  done,  under  circumstances  that 
forbid  the  possibility  of  accident.    Where  a  murder  is  charged, 
and  the  evidence  is  wholly  circumstantial,  then   it  is   always 
peculiarly  proper  to  look  at  the  motive.    And  in  all  cases,  you 
will  naturally  seek  for  the  motive.     And  where  the  proof  is 
circumstantial,  and  there  be  doubt    about  the  circumstances, 
then  it  becomes  most  important  to  examine  into  the  motive.    If, 
howrever,  the  evidence  of  murder  by  design,  be  direct  and  posi- 
tive, then  the  guilt  is  established  without  looking  further.    And 
in  all  these  cases  a  question  as  to  the  adequacy  of  motive  al- 
most always  arises.     It  is  claimed  generally  that  the  motive  is 
inadequate;  that  it  is  not  sufficient  to  induce  to  the  commission 
of  murder.     But  all  this  must  depend  on  the  peculiar  circum- 
stances of  each  case,  and  the  peculiar  character  of  the  accused. 
There  is  no  motive  which,  to  the  mind  of  an  honest  man,  can 
be  adequate  to  the  commission  of  crime;  and  just  in  proportion 
as  the  mind  is  debased  and   immoral,  to  that  extent  the  motive 
may  be  less  which  induces  the  criminal  act.    Hence  there  can 
be  no  one  rule  for  all  cases,  as  regards  adequacy  of  motive.    It 
must  depend  on  the  moral  character  of  the  person  accused,  in 
each  case.     The  worse  it  is,  the  less  the  motive  which  will 
tempt  to  the  commission  of  crime.. 

It  is  urged,  and  very  plausibly,  on  the  part  of  the  prisoner, 
that  the  relation  existing  between  him  and  the  deceased,  for- 
bids the  supposition  that  he  could  have  murdered  her — that 
they  were  just  married — and  had  barely  entered  on  that  im- 


RENSSELAER,  JULY,  1845.  33 

The  People  v.  Green. 

portant  and  interesting  relation  in  life,  and  that  it  could  not  be 
supposed,  under  the  circumstances  detailed,  that  the  prisoner 
could,  for  a  moment,  have  entertained  the  idea  of  taking  the 
life  of  the  young  woman,  whom  he  had  so  recently  sworn  at  the 
altar,  to  love,  cherish  and  protect.  This  consideration  has 
weight,  and  you  are  to  consider  carefully  this  and  all  other  cir- 
cumstances favorable  to  the  prisoner,  and  to  give  them  their  full 
and  due  weight,  comparing  them  at  the  same  time  with  the 
other  evidence  in  the  case. 

It  is  urged  by  the  prosecution  that  the  prisoner's  acquaint- 
ance with  the  girl  he  afterwards  married  was  of  short  duration; 
that  he  had  known  her  but  a  few  weeks;  that  in  fact  he  married 
her  a  week  before  the  time  appointed.  And  it  is  claimed  that 
the  marriage  wa«  not  agreeable  to  other  members  of  his  family. 
An  attempt  has  been  made  on  the  part  of  the  prosecution  to 
introduce  a  letter  alleged  to  have  been  written  by  the  mother 
to  the  prisoner,  after  his  arrest,  and  found  in  his  possession. 
That  letter  has  been  excluded.  It  was  improper  in  counsel  to 
allude  to  its  contents  on  either  side.  You  are  to  decide  this  case 
as  if  that  letter  was  not  in  existence.  You  are  to  exclude  it, 
if  possible,  from  your  minds,  if  its  contents,  or  any  part  of 
them,  have  come  to  your  knowledge. 

But  it  is  claimed  on  the  part  of  the  prosecution,  that  they 
have  proved  that  there  was  a  bad  feeling  existing  on  the  part 
of  the  mother  of  *.he  prisoner,  in  regard  to  this  marriage  of  her 
son.  The  proof  is  that  on  the  Wednesday  preceding  the  mar- 
riage, the  mother  of  the  prisoner  came  to  Berlin  with  his  sister, 
and  stopped  at  Mr.  Streeter's  tavern.  That  they  remained  there 
from  morning  until  the  afternoon  of  that  day:  that  the  mother 
sent  for  her  son  (the  prisoner),  and  that  he  came  to  Mr 
Streeter's;  that  mother  pjid  son  and  daughter  were  closeted 
together  there;  that  the  witness  listened  at  the  door,  and  then 
heard  a  remark  made  by  the  mother,  casting  suspicion  on  the 
character  of  the  prisoner's  wife,  alleging  that  she  understood 
what  her  character  \*s»s  in  Troy,  or  something  to  that  effect. 
Now,  this  is  evidence — legitimate  evidence.  You  are  to  say  to 
what  weight  it  is  entitled.  You  have  a  right  to  refer  to  that 

FOL.  I.  5 


34 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  t>.  Green. 


as  well  as  other  circumstances,  to  see  whether  it  is  proved  that 
in  truth  there  was  bad  feeling  on  the  part  of  the  mother  in  re- 
lation to  her  son's  marriage,  that  she  regretted  what  had  hap- 
pened and  disapproved  of  the  marriage.  And  in  corroboration 
of  that  it  is  urged  and  shown,  that  the  mother  did  not  call  on 
the  deceased. 

It  is  urged  by  the  prosecution  also  that  this  match,  thus  has- 
tily and  prematurely  entered  into,  did  not  indicate  that  desirable 
and  abiding  affection  which  is  supposed  to  be  incompatible  with 
the  feeling  that  induced  the  commission  of  this  crime;  and  that 
a  former  attachment  to  Miss  Godfrey  (the  same  one  that  went 
with  him  after  his  marriage  on  the  sleigh  ride)  still  lingered 
about  the  prisoner,  and  prompted  him,  in  connection  with  the 
interview  with  his  mother,  to  the  commission  of  the  act  for 
which  he  is  arraigned.  Look  at  the  evidence,  gentlemen,  and 
see  whether  this  is  proved.  You  must  look  at  this  question  of 
motive  and  give  it  due  weight;  because  this  is  all  a  question  of 
fact,  and  belongs  to  the  jury  to  decide.  It  is  not  proper  that 
the  court  should  express  an  opinion,  or  attempt  to  control  you 
in  settling  it. 

On  the  part  of  the  prisoner  it  is  urged,  and  many  witnesses 
have  been  introduced  to  prove,  that  up  to  the  time  of  this  occur- 
rence, the  prisoner  sustained  a  fnir  character.  Now,  in  cases  of 
doubt,  this  is  very  important  evidence.  If  the  evidence  stood 
balanced,  or  nearly  so,  or  if  it  admitted  of  doubt,  it  would  be 
more  satisfactory  to  know  what  had  been  the  true  character  of 
the  accused  before;  and  he  is  entitled  to  the  benefit  of  former 
good  character.  But  if  the  crime  be  proved  upon  him  to  your 
satisfaction,  then  it  is  of  no  consequence  what  his  character  had 
been.  You  have  heard,  however,  what  the  witnesses  have  said 
on  this  point — what  was  drawn  out  on  the  direct  and  cross- 
examination;  and  if  this  case  be  one  of  doubt  in  your  minds, 
then  you  must  resort  to  the  question  of  character,  and  give  to 
the  prisoner  all  the  benefit  of  his  character  as  proved. 

I  have  thus  called  your  attention  to  the  prominent  issues  in- 
volved in  this  case.  In  all  such  cases,  it  is  the  rule  of  law,  and 
it  is  a  salutary  one,  which  has  prevailed  from  time  immemorial., 


RF.NSSELAER,  JULY,  1845.  3/5 

The  People  v.  Green. 

that  if  there  be  a  reasonable  doubt  of  the  guilt  of  the  accused, 
he  is  to  have  the  benefit  of  that  doubt.  But  by  a  reasonable 
doubt,  I  do  not  mean  a  bare  possibility  of  innocence,  because 
that  may  exist  in  all  cases.  Even  where  a  witness  comes  be- 
fore you  and  swears  that  he  saw  a  murder  committed,  there  is 
a  possibility  that  he  swears  to  an  untruth.  I  mean  to  say  that 
if  there  be  a  conviction  on  your  mind,  from  the  evidence  before 
you,  that  the  prisoner  is  guilty;  if  in  your  hearts  you  feel  that 
there  is  no  reasonable  question  on  that  point,  you  must  then 
find  him  guilty. 

Throughout  this  whole  trial  it  has  been  the  intention  of  the 
court  to  secure  the  prisoner  a  fair  trial.  In  all  questions  of 
doubt  as  to  the  admissibility  of  evidence,  the  court  has  been 
governed  by  views  favorable  to  the  prisoner.  So  with  you. 
Where  a  circumstance  is  of  a  doubtful  character,  or  doubtful 
in  its  bearing,  you  are  to  give  the  prisoner  the  benefit  of  the 
doubt.  But  where  a  fact  is  established,  which  leads  the  mind 
necessarily  to  the  conclusion  that  he  is  guilty,  though  there 
may  be  a  bare  possibility  that  he  is  innocent,  still  you  must 
find  him  guilty. 

In  all  these  cases,  gentlemen,  there  are  appeals  to  the  sym- 
pathies of  the  human  heart — appeals  which  if  not  made  by 
counsel,  grow  out  of  the  cases  themselves.  Our  sympathies 
naturally  tend  in  favor  of  prisoners  arraigned  for  a  capital 
offence.  In  this  case,  no  doubt,  you  would  gladly  acquit,  if 
you  could.  It  is  the  natural  tendency  of  the  human  heart.  But 
you  must  bear  in  mind  thai  mercy  is  not  an  attribute  that  belongs 
to  courts.  We  must  pass  upon  the  law,  and  the  facts  as  they 
exist.  We  have  nothing  to  do  with  sympathy  in  this  case.  If 
mercy  is  to  be  extended  to  the  prisoner,  it  will  be  extended  by 
a  different  tribunal.  The  executive  alone  can  interfere.  And 
in  this  case,  as  in  all  others  of  great  importance — in  capital 
cases  especially — it  is  urged  that  attempts  have  been  made  to 
operate  on  your  minds  by  local  appeals  and  prejudices,  by 
influences  other  than  those  legitimately  to  be  drawn  from  the  tes- 
timony. I  have  no  doubt  you  will  guard  against  such  influences. 


36  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Green. 

A  high  and  solemn  duty  devolves  on  you.  I  have  no  doubt  you 
will  meet  it  as  becomes  yourselves,  though  it  is  the  most  painful 
act  of  your  lives.  Probably  this  is  the  first  time  that  you  have 
been  called  upon  to  pass  upon  an  issue  so  momentous;  and  I  trust 
it  maybe  the  last.  You  are  to  soar  above  all  extraneous  influ- 
ences, political  or  local — to  discard  every  thing  foreign  to  the 
case  before  you.  You  are  above  it  and  beyond  it.  You  have 
a  high  and  holy  duty  to  perform.  You  are  to  mete  out  justice 
with  a  firm  and  impartial  hand;  and  under  every  obligation  to 
your  country,  to  your  own  consciences,  and  to  God,  to  discharge 
your  whole  duty,  without  fear  or  favor.  You  have  been  told  of 
the  consequences  of  a  wrong  verdict  in  this  case.  You  have 
nothing  to  do  with  conjectures  or  possibilities.  You  are  to  say, 
on  your  consciences  and  your  oaths,  whether,  upon  the  evidence 
before  you,  the  prisoner  is  guilty.  If  you  discharge  that  duty 
faithfully,  whatever  may  be  the  true  state  of  the  case,  you  can 
have  hereafter  no  cause  for  regret.  You  will  always  be  sustained 
by  the  reflection  that  you  have  faithfully  acted  according  to  the 
lights  before  you  at  the  time;  and  whether  you  acquit  the  guilty 
or  convict  the  innocent,  your  consciences  will  approve  your 
conduct. 

I  can  not  close  the  discharge  of  the  duty  that  devolves  on  me 
without  urging  upon  you  the  importance  of  agreeing  upon  a 
verdict.  The  case  has  occupied  two  whole  weeks,  A  vast 
deal  of  time  and  money  has  been  expended.  The  case  has  been 
very  fully  presented.  Many  witnesses  have  been  examined,  and 
most  ably  has  the  case  been  argued  by  counsel.  You  see,  there- 
fore, the  great  importance  of  endeavoring  to  agree  on  a  ver- 
dict. Not  that  I  anticipate  any  difficulty;  but  in  all  such  cases 
I  deem  it  my  duty  to  present  to  the  jury  the  importance  of 
agreeing.  And  I  must  add,  that  you  ought  not,  any  of  you,  to 
place  your  minds  in  that  fixed  position,  that  you  can  not  yield 
to  conviction,  by  reason  and  argument  among  yourselves;  but 
rather  cultivate  a  disposition  to  seek  after,  and  arrive  at,  the 
truth.  I  have  no  doubt  your  duty  will  be  most  faithfully  dis- 
charged— kindly  towards  the  prisoner — weighing  carefully  the 


REXSSELAER,  JULY,   1845.  37 

The  People  v.  Green. 

ingenious  and  able  arguments  in  his  behalf,  at  the  same  time 
with  a  due  regard  to  your  consciences  and  the  public  interests. 
And  whatever  result  you  may  arrive  at,  if  you  arrive  at  it  un 
der  a  full  sense  of  duty  faithfully  discharged,  it  will  be,  it  must 
be,  satisfactory  to  all.  It  will  be  enough  for  you,  however,  to 
know  that  it  is  satisfactory  to  your  own  consciences. 

The  counsel  for  the  prisoner  asked  the  court  to  charge,  that 
there  had  been  no  evidence  to  prove  that  the  prisoner  was  ac- 
tuated by  any  motive  that  induced  him  to  murder  his  wife.  The 
court  refused  so  to  charge,  but  held  and  charged  that  that  was 
a  question  of  fact  for  the  jury  to  decide,  to  which  decision  and 
charge  the  counsel  for  the  prisoner  excepted. 

The  counsel  for  the  prisoner  also  asked  the  court  to  charge, 
that  they  had  no  right  to  infer  anything  against  the  prisoner, 
in  consequence  of  the  absence  of  his  mother  and  sister  from  the 
city  of  Troy  during  the  trial.  And  that  the  jury  had  no  right 
to  infer  from  the  evidence,  that  either  the  mother  or  sister,  at 
their  interview  with  him  at  Berlin,  expressed  any  dislike  to  his 
wife,  or  said  any  thing  to  the  prisoner  against  the  character  of 
His  wife.  The  court  charged  as  requested,  on  the  first  propo- 
sition; and  as  to  the  second  proposition,  charged  that  the  jurj 
were  not  authorized  to  make  any  such  inference,  buf  must  look 
only  to  what  was  affirmatively  proved,  if  any  thing  was  proved, 
on  that  subject. 

The  counsel  for  the  prisoner  also  asked  the  court  to  charge, 
that  by  the  last  dying  declaration  of  the  deceased,  according  to 
the  testimony  of  Porter  G.  Dennison,  she  declared  she  did  not 
know  the  cause  of  her  illness,  and  thereby  contradicted  all  she 
had  previously  said  implicating  her  husband. 

The  court  refused  so  to  charge,  but  charged  that  the  jury 
must  ascertain  what  that  last  dying  declaration  was,  not  only 
from  the  testimony  of  Porter  G.  Dennison,  but  also  from  that  of 
David  W.  Wyatt,  and  having  ascertained  what  it  was,  it  was 
for  the  jury  to  say  whether  there  was  a  contradiction  of  her 
previous  declarations  implicating  her  husband. 


33  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Green. 

The  jury  found  the  prisoner  guilty,  and  he  was  sentenced  to 
be  executed,  on  Wednesday  the  tenth  day  of  September  fol- 
lowing. He  was  executed  in  pursuance  of  the  sentence  (a). 

(a)  Form  of  a  warrant  of  execution. 

The  People  of  the  State  of  New  York,  to  the  Sheriff  of  the  County  of 
Rensselaer,  Greeting; 

Whereas,  at  a  Court  of  Oyer  and  Terminer,  held  at  the  Courthouse  in  the 
city  of  Troy,  in  said  county,  on  the  nineteenth  day  of  July,  1845,  by  and  be- 
fore Amasa  J.  Parker,  one  of  the  Circuit  Judges  of  said  state,  presiding  judge 
and  George  R.  Davis,  First  Judge  of  said  County,  and  Archibald  Bull  and 
Silas  W.  Waite,  Judges,  of  the  County  Courts  of  said  county,  Henry  G. 
Green,  was  convicted  of  having  murdered  Mary  Ann  Green,  his  wife,  by 
poison,  and  was  thereupon  sentenced  by  the  said  Court  of  Oyer  and  Terminer 
to  be  hanged  by  the  neck,  on  Wednesday,  the  tenth  day  of  September  next, 
between  the  hours  of  nine  o'clock  in  the  forenoon  and  three  o'clock  in  the  after- 
noon, until  he  should  be  dead. 

Now,  we  do  by  this  warrant,  pursuant  to  the  statute  in  such  case  made  and 
provided,  require  and  appoint  that  you  cause  the  said  sentence  to  be  executed 
on  the  day  and  between  the  hours  therein  mentioned  aud  at  the  place  and  in  the 
manner  prescribed  by  law. 

Given  under  the  hands  of  the  undersigned,  being,  the  Judges  who  constituted 
•aid  Court  of  Oyer  and  Terminer,  on  this  nineteenth  day  of  July,  1845. 

Amasa  J.  Parker,  Circuit  Judge. 
George  R.  Davis,  First  Judge,  &c. 
A.  Bull,  )  Judges  of  the 

S.  W.  Waite.       J       County  courts. 


DELAWARE,  SEPTEMBER,   1S45. 


DELAWARE  OVER  ANE  TERMINER,  September  1845.  Before 
Parker,  Circuit  Judge,  and  Wheeler,  Hakes,  Gregory  and 
Jennings,  County  Judges. 

THE  PEOPLE  vs.  JOHN  VAN  STEENBURGH. 

An  offence,  in  regard  to  which  there  is  a  discretion  vested  in  the  court,  to  pun- 
ish it,  either  by  imprisonment  in  the  slate  prison  or  by  fine,  or  by  imprison- 
ment in  the  county  jail,  is  within  the  statutory  definition  of  felony.  If  the 
offender,  on  conviction,  be  liable  to  imprisonment  in  the  state  prison,  he  is 
guilty  of  felony,  though  he  be  also  liable  to  the  infliction  of  a  less  severe 
punishment. 

A  violation  of  the  seventh  section  of  the  act.  entitled  ';  an  act  to  prevent  per- 
sons appearing  disguised  and  armed,"  passed  January  28,  1845,  is  a  felony; 
and  the  killing  of  a  human  being  by  persons  engaged  in  the  violation  of  that 
section,  though  the  act  be  perpetrated  without  any  design  to  effect  death,  is 
murder. 

The  prisoner  was  indicted  for  the  murder  of  Osman  N.  Steele. 
At  the  time  of  Steele's  death,  he  was  the  under  sheriff  of  the 
county  of  Delaware,  and  was  shot  while  engaged  in  the  col- 
lecting of  rent,  by  some  persons  in  a  large  assemblage  of  peo- 
ple who  had  collected  for  the  purpose  of  resisting  the  collection 
of  the  rent,  most  of  whom  were  armed  and  disguised.  The 
prisoner  pleaded,  to  the  indictment,  not  guilty. 

It  was  proved  on  the  trial  that  Moses  Earle  lived  upon  and 
occupied  a  lease  lot  of  160  acres  of  land,  in  the  town  of  Andes 
in  the  county  of  Delaware,  which  he  held  under  Charlotte  E. 
Verplanck  at  a  rent  of  $32  a  year.  The  rent  wras  paid  up  to 
the  spring  of  1843.  Two  years'  rent  being  due  in  the  spring 
of  1845,  the  agent  of  the  lessor  applied  to  Earle  for  payment, 
but  it  was  not  paid,  and  on  the  4th  of  June,  1845,  a  distress 
warrant,  in  due  form,  for  the  collection  of  $64  was  issued  tnd 
and  delivered  to  Osman  N.  Steele,  to  be  executed  by  him  as  un- 
der sheriff  of  the  county  of  Delaware. 

It  was  proved  that  a  levy  was  made  on  sufficient  personal 
property,  which  was  duly  appraised  and  advertised  for  sale; 
lhat  Earle  was  urged  to  pay  and  refused;  that  on  the  29th  July, 
for  which  day  the  sale  was  advertised,  the  sheriff  offered  the 


40  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Van  Steenburgh. 

property  for  sale  and  could  get  no  bidders,  though  from  forty 
to  fifty  persons  were  present,  and  that  the  sale  was  postponed 
for  want  of  bidders  till  the  7th  of  August.  That  on  the  day 
last  named,  Green  Moore,  the  sheriff,  andOsmanN.  Steele,  the 
under  sheriff,  accompanied  by  Mr.  Wright,  the  attorney  for 
the  lessor,  and  Mr.  Edgerton,  who  acted  in  their  aid,  went  to 
the  place  of  sale  on  the  leased  premises;  that  Earle,  when 
again  appealed  to  for  payment,  said,  "  You  will  have  to  go  on 
and  make  it  out  of  the  property.  I  shall  fight  it  out  at  the 
hardest." 

Peter  P.  Wright,  one  of  the  witnesses  for  the  prosecution, 
described  the  further  occurrences  of  the  day  as  follows:  Soon 
afterwards  six  persons,  armed  and  disguised  as  Indians,  were 
seen  in  the  pasture  lot  on  the  southerly  side  of  the  road.  The 
sheriff  told  the  spectators  to  assist  him  in  arresting  them,  but 
it  was  not  done  and  no  attempt  was  made  to  arrest  them.  A 
few  minutes  afterwards,  as  many  more  persons  similarly  armed 
and  disguised  were  seen  in  the  pasture  lot,  who  entered  the 
woods  at  the  same  place.  Between  ten  and  eleven  o'clock,  I 
saw  a  company  of  disguised  persons  coming  from  the  north  side 
of  the  road.  They  crossed  the  road  and  went  across  the  pasture 
lot  to  the  same  place,  and  their  chief  commanded  them  to  halt. 
They  did  so,  and  turned  around  and  looked  at  me,  and  their 
chief  cried  "  Tory  "  several  times.  They  then  faced  about  and 
returned  and  went  to  the  ncrth  side  of  the  road  and  passed  near 
me.  Some  of  them  had  theii  masks  up.  I  was  anxious  to  learn 
who  they  were  and  followed  tt<;m  up  the  hill. 

At  the  same  time,  about  60  t^sguised  persons  came  out  of 
the  woods  below  the  line,  ann  fo*o?ed  in  single  file.  Their 
chief  was  dressed  in  scarlet.  1  hey  entered  the  woods  at  the 
same  place  as  the  others,  which  was  tb<>  general  puace  of  ren- 
dezvous. It  is  said  there  is  a  spring  at  thr  place  of  *•<.  adezvous. 
About  noon  they  commenced  coming  out  f-om  th"«.  place  in 
single  file,  and  formed  in  platoons,  four  deep,  n^sa  th'-  i>ars,  and 
then  marched  down  the  road  and  formed  a  line,  as  far  ;»r  JSarle's 
house.  As  they  passed  through  the  bars,  I  trieu  to  c?vn  them. 
I  counted  part  and  estimated  the  remainder.  I  thlnJ  ,ber* 


DELAWARE,  SEPTEMBER,   1845.  41 

The  People  t>.  Van  Steenburgh, 


were  about  one  hundred.  They  faced  to  the  north,  fronting 
Earless  house.  I  then  passed  down  along  the  front  of  the  line 
towards  Earle's  house.  These  men  were  armed  and  disguised 
as  Indians  —  masked,  so  as  not  to  be  distinguished.  I  went 
down  to  about  the  centre  of  the  line  and  met  the  commander- 
in-chief.  He  was  telling  the  spectators  to  stand  back  —  that 
they  wanted  the  ground.  He  told  me  to  stand  back  twenty 
feet.  I  told  him  I  should  not  stand  back  twenty  feet,  nor  one 
inch  for  him,  or  any  of  his  tribe.  He  had  a  broad  sword  in  his 
hand,  and  he  then  placed  it  flat  against  my  breast  and  told  me 
to  stand  back.  I  then  put  my  hand  on  the  handle  of  a  pistol 
in  my  breast  pocket,  and  told  him  to  withdraw  his  sword  from 
my  person  instantly,  or  I  would  make  a  hole  through  him.  He 
then  dropped  his  sword  and  took  it  in  the  other  hand,  drew  up 
his  dress  and  drew  a  pistol  from  his  pantaloons  pocket,  and 
presented  it  and  said,  "  I  have  a  pistol  as  well  as  you,"  and 
said,  "  do  you  draw  a  pistol  upon  me?"  I  said  I  had  drawn 
none  on  him,  but  if  he  violated  my  person  again,  I  should  de- 
fend myself  as  long  as  I  had  power  to  do  it  —  that  I  did  not 
come  there  to  get  into  any  quarrel.  I  told  him  that  he  was 
violating  the  law  as  well  as  the  rest  of  his  tribe,  and  they  were 
liable  to  be  punished  in  state  prison,  and  they  all  knew  it.  One 
of  the  Indians  in  the  line  said,  "damn  the  law;  we  mean  to 
break  it." 

The  commander-in-chief  had  a  scarlet  dress  —  black  cap, 
something  like  a  chapeau,  and  a  red  mask  made  of  cloth  that 
set  very  close  to  his  face.  I  told  him  I  knew  him.  He  said 
"  No  you  don't,"  I  said,  "  Yes  I  do,  and  I  shall  remember  you 
too,"  He  said  "  You  can't  swear  to  me,"  and  he  turned  and 
left  me  standing  there.  Pretty  soon  he  came  back  and  ran 
against  me  intentionally,  as  1  supposed.  I  paid  no  attention 
to  that.  Then  the  Indians  in  the  line  commenced  blackguard- 
ing me,  and  asked  me  if  I  came  there  to  bid  upon  the  property. 
[  told  them,  if  the  property  was  offered  for  sale,  I  should  bid  on 
it.  They  then  said,  that  if  I  bid  on  the  property,  I  should  go 
home  feet  foremost  in  a  wagon.  One  of  them  wanted  the  chief 

VOL.  I.  6 


42  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Van  Steenburgh. 

to  order  him  to  throw  me  over  the  stone  wall,  and  said  it  would 
be  done  very  quick. 

Just  before  Sleele  and  Edgerton  came  up,  there  was  a  horn 
blowed  by  some  one  in  the  line  of  Indians.  Wher  Steele  and 
Edgerton  came  to  the  lower  end  of  the  line,  the  chief  com- 
manded the  Indians  to  march  up  to  the  stone  wall  and  they  did 
so,  and  faced  about  and  Steele  and  Edgerton  rode  by.  We 
then  had  an  interview,  and  the  sheriff  announced  we  would 
proceed  with  the  sale,  and  he  started  and  requested  some  one 
to  go  with  him.  John  Burr  and  another  person  went  with 
him  into  the  pasture  lot,  to  assist  him  to  drive  up  the  cattle 
levied  on.  The  commander-in-chief  then  said,  he  wanted 
twelve  volunteers  to  accompany  the  sheriff  and  prevent  his  sell- 
ing the  property  in  the  lot.  They  came  out  from  the  east  end 
of  the  line  and  went  through  the  bars,  and  the  chief  counted 
them  off.  Shortly  after,  he  called  for  more  volunteers,  who 
also  went  The  sheriff  drove  the  cattle  up  near  the  bars,  but 
he  had  some  difficulty  in  doing  so.  The  whole  body  of  Indians 
then  moved  up  the  road  and  through  the  bars,  and  formed  a 
hollow  square  around  the  bars.  Steele  and  Edgerton  took 
their  position  near  the  bars,  and  I  was  between  them.  We 
were  facing  south  and  Edgerton  was  on  my  right.  I  was  on 
foot  and  Edgerton  and  Steele  were  on  horseback.  The  sheriff 
was  trying  to  drive  the  property  into  the  road.  A  person 
named  Brisbane  came  up,  and  said  we  had  no  right  to  sell  in 
the  road,  because  the  advertisement  said,  "  on  the  premises." 
Brisbane  was  in  disguise.  Steele  and  Edgerton  then  rode 
down  the  road  to  read  the  advertisement  at  the  barn.  Some  of 
the  Indians  came  out  of  the  lot,  across  the  road,  over  the  fence, 
and  went  in  a  westerly  direction.  Steele  and  Edgerton  re- 
turned to  the  bars  and  the  Indians  went  back  into  the  lot.  We 
took  our  positions  as  before.  Then  I  talked  with  Steele  and 
Edgerton,  about  adjourning  the  sale.  Wre  thought  it  was 
best  to  offer  one  article.  Steele  told  me  to  stand  between  him 
and  Edgerton  and  they  would  protect  me  if  I  wished  to  bid  on 
the  property.  We  remained  a  few  moments  and  I  called  the 
sheriff  out  and  told  him,  unless  the  Indians  would  permit  hii 


DELAWARE,  SEPTEMBER,   1845.  43 

The  People  v.  Van  Stcenburgh. 

to  get  the  property  into  the  road,  he  might  adjourn  the  sale. 
He  went  back  into  the  lot  and  said  he  thought  he  should  be 
able  to  get  them  to  consent  to  it.  The  sheriff  took  his  position 
a  little  to  our  right  —  fifteen  or  twenty  feet  distant.  At  this 
time,  there  was  a  platoon  of  Indians  guarding  the  bars,  to  pre- 
vent people  entering  the  lot.  I  then  asked  permission  to  paes 
into  the  lot.  I  wanted  to  see  the  sheriff  and  they  forbade  my 
passing  in.  I  told  the.:.  I  should  go  in  and  they  said  I  should 
not.  I  stepped  up  again,  and  a  man  put  up  his  gun  perpendi- 
cularly. I  put  up  my  cane  and  forced  a  passage  through  into 
the  lot.  They  huddled  up  around  me  and  Steele  and  Edgerton 
rode  in  immediately.  They  came  up  side  of  me.  The  platoon 
of  Indians  at  the  bars  fell  back  as  they  passed,  and  I  advanced. 
They  rode  in,  twenty  or  thirty  feet.  After  they  had  got  in 
about  a  rod,  the  command  was  given  to  shoot  the  horses.  The 
horses  were  six  or  eight  feet  apart,  and  I  was  in  the  middle,  a 
little  in  advance.  "  Shoot  the  horses"  was  spoken  by  several; 
can't  be  certain  the  chief  started  it;  I  think  it  was  repeated  as 
many  as  three  times.  Edgerton  in  a  loud  voice  said,  "  I  com- 
mand all  persons  present  to  assist  in  preserving  the  peace." 
Edgerton  was  a  constable.  I  think  his  horse  was  about  sta- 
tionary at  that  time.  The  Indians  formed  a  circle  or  semi- 
circle about  us.  I  saw  an  Indian  on  the  right,  six  or  eight  feet 
from  Edgerton's  horse,  pointing  his  gun  at  the  right  breast  of 
the  horse;  —  the  discharge  took  effect  and  I  saw  the  blood  flow 
out  freely;  —  three  or  four  guns  were  then  fired  in  quick  suc- 
cession. Some  of  them  said  "  shoot  him"  or  "  shoot  'em.'*  It 
was  repeated  more  than  once.  Edgerton's  horse  reared  up  and 
plunged  and  turned  to  the  left.  So  did  Steele's  horse.  While 
they  were  passing  around  that  way,  there  was  a  volley  of 
twelve  or  fifteen  guns  discharged  among  us.  This  was  just 
after  the  words  "  shoot  'em,"  a  few  seconds  after  the  others 
had  been  fired.  I  stepped  back  towards  the  bars  while  this 
second  volley  was  fired,  and  I  saw  Steele  falling  towards  the 
right,  near  the  rail  fence,  fifteen  or  twenty  feet  above  the  bars. 
His  horse  did  not  fall,  but  turned  towards  the  left.  His  horse 
passed  down  and  stumbled  and  fell.  Edgerton's  horse  stumbled 


44  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Van  Steenburgh. 

and  Edgerton  got  off  and  the  horse  fell  near  Steele.  Sheriff 
More,  Edgerton  and  myself  run  up  to  Steele.  More  said,  "  For 
God's  sake,  you  have  done  enough  —  desist."  I  think  the 
firing  continued  after  Steele  commenced  falling.  We  ran  up 
and  took  hold  of  him,  and  asked  him  how  bad  he  was  wounded, 
and  he  said  his  bowels  were  all  shot  to  pieces  —  that  there 
were  two  bullets  in  him  and  he  could  not  live  but  a  few 
minutes.  This  was  about  half  past  two  o'clock.  The  sheriff, 
Edgerton  and  myself  carried  him  through  the  bars,  and  then 
Doct.  Calhoun  came  to  our  assistance  in  the  road,  and  we  car- 
ried him  down  to  the  shade  of  the  barn,  where  Steele  requested 
us  to  lay  him  down  a  moment.  Then  Brisbane  joined  us,  and 
we  carried  him  into  Earle's  house  and  laid  him  on  the  bed. 
Doct.  Calhoun  and  all  of  us  examined  his  wounds,  and  found 
he  was  mortally  wounded.  One  bullet  went  into  the  breast 
and  out  near  the  right  shoulder.  One  entered  on  the  back  — 
the  mortal  wound — and  came  out  on  the  right  side,  and  one 
through  the  right  arm.  He  died  at  fitfeen  minutes  past  eight 
on  that  night. 

There  was  further  evidence,  tending  to  show  that  the  Indians 
made  threats  against  Steele  before  he  entered  the  bars  and 
that  Steele  made  no  reply.  It  was  also  proved  that  Steele  was 
armed  with  a  pistol,  but  that,  if  he  fired  it,  it  was  not  till  after 
from  three  to  five  shots  had  been  fired.  He  was  then  seen 
trying  to  raise  his  right  arm  with  the  help  of  his  left  hand, 
with  the  pistol  in  his  right  hand.  It  was  also  proved,  that 
some  of  the  Indians  broke  and  run  as  soon  as  the  firing  com- 
menced or  very  soon  after,  and  that  the  whole  number  of 
Indians  present  was  about  one  hundred  and  fifty. 

It  was  proved  that  the  prisoner  was  one  of  the  disguised 
persons  present  upon  that  occasion;  and  that  he  was  armed 
with  a  rifle,  and  that  when  the  disguised  persons  were  return- 
ing home  on  that  day,  after  Steele  was  shot,  one  of  the  dis- 
guised persons  whom  the  evidence  tended  strongly  to  prove 
to  be  the  prisoner,  said,  speaking  of  Steele's  be-ing  shot,  "  that 
it  was  good  enough  for  him  and  that  he  got  what  he  ought  to 
have." 


DELAWARE,  SEPTEMBER,   1845.  45 

The  People  v.  Van  Steenburgh. 

One  of  the  witnesses  testified  that  about  fifteen  minutes 
after  the  firing,  he  heard  the  prisoner  inquiring  for  a  small 
ram  rod,  to  enable  him  to  reload  his  rifle.  But  the  witness 
who  testified  admitted  he  was  one  of  the  disguised  men  and 
there  was  evidence  impeaching  his  general  character.  There 
was  also  evidence  tending  to  show  that  the  prisoner's  gun  was 
discharged  by  him  on  his  way  to  the  place  of  rendezvous. 

S.  Gordon  and  S.  Bowne,  for  the  prisoner,  cited  2  R.  S. 
546,  587;  6  Wend.  277;  4  Black.  Com.  95,  104;  1  Cow.  if 
HiWs  notes,  64;  People  v.  Ward,  3  Hill,  397;  Roscoe  Cr.  Ev. 
567. 

J.  B.  Steele  and  S.  Sherwood,  for  the  people,  cited  Russ.  on 
Cr.  447,  451,  454;  Starkie  Ev.  3;  Barbour  Cr.  L.  258;  Stat- 
utes of  1845,  Ch.  3 

PARKER,  Presiding  Judge,  among  other  things,  charged,  that 
the  offence  of  being  armed  and  disguised,  while  engaged  in  a 
riot  or  in  resisting  the  execution  of  legal  process,  as  described 
in  the  seventh  section  of  the  act  entitled  an  act  to  prevent  per- 
sons being  disguised  and  armed,  passed  January,  28,  1845 
(Sess.  Laws  of  1S45,  page  7),  was  a  felony,  and  brought  the 
offender  within  the  definition  of  murder  in  the  third  subdivision 
of  the  5th  Section,  Title  1,  Chap.  1,  Part  4  of  the  Revised  Stat- 
utes, if  the  killing  of  a  human  being  was  perpetrated  without 
a  design  to  effect  death  by  a  person  engaged  in  the  commission 
of  such  offence;  to  which  portion  of  the  charge  .the  prisoner's 
counsel  excepted. 

The  prisoner's  counsel  contended  that  the  offence  created  by 
the  act  of  1845,  was  not  a  felony,  because  its  commission  was 
not  necessarily  to  be  punished  by  imprisonment  in  the  state 
prison,  but  might  be  punished  by  fine  and  imprisonment  in  a 
county  jail.  But  the  court  held  that  the  offence  was  felony, 
because  it  was  liable  by  law  to  be  punished  by  imprisonment 
ii  a  state  prison,  and  that  it  was  none  the  less  felony,  because 
.1  WPS  also  liable  to  be  punished  by  some  milder  punishment, 


46  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Van  Steenburgh. 

the  statute  definition  of  felony,  in  this  state,  being,  "an  offence. 
for  which  the  offender,  on  conviction,  shall  be  liable  by  law  tc 
be  punished  by  death  or  imprisonment  in  the  state  prison"  (2 
R.  S.  702). 

And  the  court  charged  the  jury,  that  if  they  were  satisfied 
from  the  evidence,  that  the  armed  and  disguised  persons  men- 
tioned, by  the  witnesses,  had  assembled  for  the  purpose  of  pre- 
venting a  sale  of  the  property  levied  on  under  the  landlord's 
warrant,  either  by  force  or  by  intimidation,  and  in  the  further- 
ance of  that  object  some  of  them  shot  at  the  horses  of  Steele 
and  Edgerton,  though  such  shots  were  fired  with  the  intention 
of  killing  the  horses  and  not  of  killing  Steele,  yet  if  Steele  was 
killed  by  such  shots,  the  crime  committed  was  murder,  for 
which  act  each  one  of  the  armed  and  disguised  persons  so 
assembled  was  responsible. 

The  jury  found  the  prisoner  guilty  of  murder,  and  he  was 
sentenced  by  the  court  to  be  executed  on  Saturday  the  29th 
day  of  November,  I845.(a) 

(a)  A  statement  of  the  conviction,  sentence  and  testimony  in  this  case  having 
been  transmitted  by  the  presiding  judge  to  the  Governor,  pursuant  to  the  re- 
quirement of  the  Revised  Statutes  (2  R.  S.  658,  $  13),  the  latter  submitted  the 
ease  to  the  justices  of  the  Supreme  Court  of  the  State,  who  concurred  in  the 
correctness  of  the  decisions  of  the  legal  questions  which  arose  on  the  trial. 

At  the  same  Court  of  Oyer  and  Terminer,  Edward  O'Connor  was  also  tried 
and  convicted  of  the  murder  of  Steele  and  sentenced  to  be  executed  at  the  same 
time  with  Van  Steenburgh.  Moses  Earle,  and  Daniel  W.  Squires,  Daniel 
Northrop  and  Zera  Preston  were  convicted  of  manslaughter  in  the  first  degree, 
and  sentenced  to  imprisonment  in  the  state  prison  for  life.  Calvin  Madison 
was  convicted  of  manslaughter  in  the  first  degree,  and  sentenced  to  imprison 
ment  in  the  state  prison  for  ten  years.  John  Phoenix,  Isaac  L.  Burhans,  Join 
Burch,  William  Reside  and  John  Latham,  were  convicted  of  manslaughter  in 
the  first  degree,  and  sentenced  to  imprisonment  in  the  state  prison  for  seven 
years.  William  Brisbane  was  convicted  of  manslaughter  in  the  second  degee, 
and  sentenced  to  seven  years'  imprisonment.  William  Jocelyn  was  convicted 
of  manslaughter  in  the  fourth  degree,  and  sentenced  to  two  years'  imprisonment. 
Charles  T.  McCumber  was  convicted  of  robbery  in  the  second  degree,  and 
sentenced  to  seven  years'  imprisonment. 

At  the  same  court,  fines,  ranging  from  $25  to  $500,  and  amounting  in  the 
aggregate  to  S2150,  were  imposed  upon  the  following  named  persons,  convict- 
ed of  conspiracy,  or  of  havine,  on  some  occasion,  been  unlawfully  disguisea 
»nd  armed,  in  violation  of  the  act  of  1845.  Harvey  Hubbell,  Richard  Halcott 


NEW  YORK,  MARCH,  1846.  47 


SUPREME  COURT.     At  Chambers,  New  York,  March,  1845. 
Before  Edmonds,  Circuit  Judge. 

THE  PEOPLE  v    GEORGE  POTTER. 

The  power  conferred  upon  the  executive  by  the  constitution  to  grant  pardon*, 
includes  the  power  of  granting  a  conditional  pardon. 

Such  condition  may  be  banishment  from  the  United  States,  and  on  a  breach  of 
the  condition  the  pardon  becomes  void,  and  the  criminal  may  be  remanded 
on  his  original  sentence. 

The  power  to  remand  him  can  be  exercised  by  the  court  in  which  he  was  con- 
victed, or  by  any  court  of  superior  criminal  jurisdiction. 

The  prisoner  presented  his  petition  to  the  circuit  judge,  set- 
ting forth,  that  he  was  unjustly  imprisoned  in  the  bridewell  of 
the  city  of  New  York,  and  praying  for  the  allowance  of  a  ha- 
beas corpus. 

The  keeper  of  the  bridewell  in  his  return  to  the  habeas  cor- 
pus, set  forth  the  following  commitments  as  the  authority  by 
which  he  held  the  prisoner  in  his  custody: 

New  York  General  Sessions  of  the  Peace: 

The  People  of  the  State  of  New  York  v.  George  Potter. 
January  8th,  1846.  On  indictment  for  an  attempt  to  commit  a 
grand  larceny,  goods  of  Edward  Jones. 

On  motion  of  Jonas  B.  Phillips,  Esq.,  acting  district  attor- 

John  M.  Bardsley.  George  Lynde,  Abel  A.  Fuller,  John  Lockwood,  Nathan 
Travis,  David  T.  Scudder,  James  Barnhart,  William  Bryant,  Chauncey  P. 
Wolcott,  Miles  Bromley,  John  O.Liddle,  Andrew  Liddle,  Homer  Bergen,  Levi 
Jenkins.  James  A.  Mills,  Homer  Sandford,  Cantine  Connelly,  Robert  Ruther- 
ford, Archibald  McNair,  John  Oliver,  Lewis  Delamater,  Levi  Sanford,  John 
Davis,  Robert  Scott. 

As  to  the  following  persons,  who  pleaded  guilty,  sentence  was  suspended. 
Augustus  Kittle,  James  Clayton.  Smith  Sanford,  Edwin  Mason,  Barber 
Stafford,  Henry  L.  Russell,  Zadok  P.  Northrop,  John  Wilson,  Jr.,  William 
Ferdon,  James  Hayes,  Alonzo  Sanford. 

AI  of  the  convictions  mentioned  in  this  note  were  for  offences  com.nitted  in 
resisting  the  collection  of  rents.  It  is  due  to  the  character  of  the  people  of 
Delaware  County  to  say  that  since  such  convictions,  no  instance  of  an  illegal 
resistance  to  the  execution  of  process  has  occurred  in  that  county. 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Potter. 


ney,  ordered  that  the  said  George  Potter  be  committed  to  the 
custody  of  the  keeper  of  the  city  prison  of  the  city  of  New 
York,  until  thence  delivered  by  due  course  of  law. 
Extract  from  the  minutes. 

HENRY  VANDERVOORT,  Clerk. 

New-York  Oyer  and  Terminer,  January  Sth,  1846: 

The  People  v.  George  Potter :  —  It  appearing  to  the  court, 
that  the  said  George  Potter  was  convicted  of  grand  larceny  at 
the  September  General  Sessions,  1844,  and  was  sentenced  on 
the  thirteenth  day  of  September,  1844,  to  be  imprisoned  in  the 
state  prison  at  hard  labor,  for  the  term  of  five  years,  and  that 
the  said  George  Potter  had  received  a  conditional  pardon  from 
the  executive  of  this  state,  and  that  he  had  not  complied  with 
said  conditions  :  On  motion  of  Jonas  B.  Phillips,  Esq.,  in 
behalf  of  the  district  attorney,  ordered,  that  the  said  George 
Potter  stand  committed  to  the  custody  of  the  keeper  of  the  city 
prison  of  the  city  of  New-York,  until  thence  delivered  by  due 
course  of  law. 

A  true  extract  from  the  minutes. 

HENRY  VANDERVOORT,  Clerk. 

At  a  court  of  general  sessions  of  the  peace  holden  in  and  for 
the  city  and  county  of  New- York,  at  the  Halls  of  Justice  of  the 
said  city,  on  Tuesday  the  tenth  day  of  February,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  forty-six:  Present, 
the  Honorable  Frederick  A.  Tallmadge,  Recorder  of  the  city 
of  New-York;  Joseph  A.  Diver,  Bernard  J.  Messerole,  Alder- 
uaen  of  the  said  city,  Justices  of  the  Sessions. 

The  People  v.  George  Potter. — The  prisoner  is  arraigned  on 
a  former  conviction  in  this  court,  at  the  August  term,  one 
thousand  eight  hundred  and  forty-four,  for  grand  larceny  of  the 
goods  and  chattels  of  Abraham  Mallory,  and  for  which  he  was 
sentenced  to  be  imprisoned  in  the  state  prison  at  hard  labor, 
for  the  term  of  five  years.  Whereupon  the  district  attorney 
moved,  that  he  be  arraigned  upon  the  said  conviction,  and  that 
he  be  required  to  show  cause  why  he  should  not  be  remanded 


NEW  YORK,  MARCH,  1846.  49 

The  People  v.  Potter. 

to  and  be  imprisoned  in  the  state  prison,  for  the  residue  of  the 
said  term,  to  which  the  said  prisoner  objected,  first,  because 
the  court  had  no  jurisdiction,  and,  secondly,  because  a  habeas 
corpus  was  now  pending  before  his  honor  the  circuit  judge  of 
this  circuit  in  the  same  matter.  Whereupon,  it  is  ordered  by 
this  court,  that  the  said  prisoner  be  remanded  to  the  custody  of 
the  keeper  of  the  city  prison  of  the  city  of  New-York,  upon 

the  said  conviction,  until  he  be  thence  delivered  by  due  course 
of  law. 

A  true  extract  from  the  minutes. 

HENRY  VANDERVOORT,  Clerk. 

To  that  return  the  prisoner  pleaded  that  at  the  September 
term  of  the  general  sessions  of  New  York,  1844,  he  was  con- 
victed of  grand  larceny,  and  sentenced  to  five  years'  imprison- 
ment in  the  state  prison,  that  he  was  immediately  by  virtue  of 
that  sentence  committed  to  the  state  prison,  and  there  remained 
until  the  12th  April,  1845,  when  the  governor  of  the  state  did 
execute,  grant  and  deliver  to  him  his  certain  pardon  or  act  of 
grace,  whereby  he  pardoned,  released  and  remised  him  from  the 
said  offence,  and  from  all  sentences,  judgments  and  executions 
thereon,  on  condition  that  the  prisoner  should,  on  or  before  the 
last  day  of  the  said  month  of  April,  depart  from  and  out  of  the 
United  States,  and  never  return  to  the  same,  and  in  the  event 
of  his  not  complying  with  the  said  condition,  the  pardon  should 
cease,  and  be  inoperative,  and  he  should  be  arrested  and  im- 
prisoned according  to  his  sentence. 

The  plea  further  stated,  that  upon  the  execution  and  delivery 
of  the  pardon  to  him,  he  was  immediately  discharged  from  the 
state  prison,  and  from  imprisonment,  and  so  remained  until 
the  time  of  the  said  several  commitments;  that  on  the  28th  of 
April,  he  did  depart  from  the  state  of  New  York,  into  the  Ca 
nadas,  and  into  others  of  the  United  States,  viz.  Missouri,  Ohio 
and  Louisiana,  and  remained  out  of  the  state  of  New  York  until 
the  21st  of  November,  1845,  when  he  was  forcibly  brought 
from  the  state  of  Louisiana  into  this  state,  by  one  of  the  po- 
licemen of  New  York. 

VOT.    I.  7 


50  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Potter. 

To  this  plea  the  district  attorney  interposed  a  general  de- 
murrer, and  the  prisoner  joined  in  demurrer. 

T.  W.  Warner  and  D.  Graham,  moved  for  the  discharge  of 
the  prisoner: 

1.  Because  the  prisoner  had  been  pardoned  by  the  executive; 

2.  Because  the  pardon  was  absolute,  the  condition  being  void 
for  want  of  power  in  the  government  to  grant  a  conditional 
pardon,  and  because  exile  from  the  United  States  was  beyond 
his  power  to  enforce; 

3.  Because  there  was  no  power  in  the  courts  to  enforce  the 
performance  of  the  condition. 

J.  McKeon  (district  attorney)  and  J.  R.  Whiting,  contra. 

EDMONDS,  J. — The  commitment,  by  the  general  sessions  to 
answer  to  the  second  indictment  is  not  complained  of  by  the 
prisoner  on  these  proceedings,  and  is  to  be  regarded  as  legal 
and  valid.  He  has,  however,  the  right  to  have  the  other  causes 
of  his  detention  inquired  into  and  determined  (exparte  Badgley, 
7  Cow.  472> 

Those  other  causes  involve  the  validity  of  the  pardon,  and  in 
regard  to  that,  three  points  are  ma"de  for  the  prisoner: 

1.  That  the  governor  has  no  right  to  grant  a  conditional 
pardon; 

2.  That  if  he  has,  he  has  no  power  to  impose  exile,  or  ban- 
ishment, from  the  United  States,  as  a  condition; 

3.  That  even  if  he  has  the   authority  denied  to  him  in  the 
foregoing  propositions,  yet  there  is  no  power  or  jurisdiction  in 
any  court  or  officer  to  enforce  the  condition,  or    a  forfeiture 
which  may  flow  from  its  violation. 

First.  Has  the  governor  authority  to  grant  a  conditional 
pardon? 

His  authority  in  the  premises  is  derived  from  the  constitution, 
which,  Art.  5,  §  5,  contains  these  words:  "The  governor  stall 
have  power  to  grant  reprieves  and  pardons  after  conviction,  for 
all  offences,  except  treason  and  cases  of  impeachment. 


NEW  YORK,  MARCH,   1846.  5J 

The  People  v.  Potter. 

It  is  contended  for  the  prisoner  that  this  is  not  a  grant  to  the 
executive  of  the  pardoning  power,  which  is  inherent  in  the 
sovereign  authority,  with  all  its  incidents,  but  is  simply  a  naked 
power  to  bestow  or  refuse  pardons;  in  the  exercise  of  which, 
like  that  of  the  veto  power,  he  is,  as  it  were,  a  mere  automaton, 
clothed  only  with  authority  to  say  aye  or  no  to  the  application 
to  him-. 

And  while  it  is  conceded  that  by  the  common  law  the  right 
to  attach  conditions  is  necessarily  incident  to  the  pardoning 
power,  it  is  insisted  that  the  whole  power  is  not,  by  the  lan- 
guage of  the  constitution,  vested  in  the  executive,  but  only  the 
power  to  grant  or  deny;  and  that  the  rules  of  the  common  law 
do  not  affect  or  bear  upon  this  special  and  limited  grant. 

This  view  of  the  case  seems  to  depend  mainly  upon  a  verbal 
criticism — upon  a  distinction  between  the  "  pardoning  power" 
and  the  "  power  to  grant  pardons." 

There  are  two  controlling  reasons  why  the  aid  of  the  com- 
mon law  is  to  be  invoked  in  the  decision  of  this  question. 

First.  Because  the  words  in  which  this  grant  of  power  is 
conveyed  are  well  known  to  the  common  law,  and  by  use  and 
adjudications  have  obtained  a  precise  and  definite  meaning. 

And,  second.  Because  the  instrument  which  grants  the  power, 
eo  instanti,  makes  the  common  law  a  part  of  the  law  of  the 
land  ( 1  R.  S.  54,  article  7,  section  13). 

The  word  "  grant"  comprehends  something  more  than  the 
mere  execution  of  the  instrument;  it  includes  a  delivery  of  it; 
and  as  there  can  be  no  delivery  without  an  acceptance,  there  is 
necessarily  comprehended  within  the  word,  the  idea  that  the 
minds  of  both  parties  to  the  instrument  have  met,  that  they, 
have  agreed  that  one  shall  execute  and  deliver,  and  the  other 
shall  accept  and  receive  (per  Marshall,  Ch.  J.,  in  the  United 
States  v.  Wilson,  1  Peters,  156). 

The  word  "  pardon"  includes  a  remission  of  the  offence,  or  of 
the  penalties,  forfeitures  or  sentences  growing  out  of  it,  and 
may  be  of  a  part  or  the  whole  of  these  things. 

Thus  one  may  be  pardoned  of  the  imprisonment,  and  still  be 
left  to  suffer  the  other  penalties  attached  to  the  offence.  In 


52  DECISIONS  IN  CRIMINAL  CASES. 

The  People  ».  Potter. 

cases  of  perjury  this  would  still  subject  the  convict  to  the  disa- 
bility of  being  a  witness. 

A  convict  for  life  might  be  set  at  large  and  still  suffer  the 
penalty  of  the  dissolution  of  his  marriage  contract  or  the  vest- 
ing of  his  property  in  the  hands  of  administrators  or  trustees. 

And  so,  under  our  statute,  though  the  prisoner  is  pardoned 
both  of  the  offence  and  of  the  penalties,  he  is  not  restored  to 
the  rights  of  citizenship  unless  by  the  terms  of  such  pardon 
he  shall  be  so  restored  (1  R.  S.  127,  §3;  vide  also  State  v. 
Twitty,  4  Hawks'  JV.  Car.  R.  193). 

To  "  grant  pardons"  seems  then  to  imply  that  the  sovereign 
power  of  the  state,  or  its  representative,  has  executed  and  de- 
livered, and  the  prisoner  has  agreed  to  accept,  and  has  accepted, 
a  pardon  or  forgiveness  of  the  offence  which  he  has  committed, 
or  some  part  of  it,  and  a  remission  of,  and  release  from,  the 
penalties  attached  to  the  offence,  or  "some  of  them. 

Such  is  the  common  law  definition  of  the  terms  in  question; 
and  as  by  the  constitution  the  common  law  was  declared  to  be 
the  law  of  this  state,  I  can  not  see  how  that  definition  can  be 
disregarded  in  any  judicial  proceeding,  and  as  that  definition 
was  established  long  before  the  use  of  these  words  in  the  con- 
stitution, so  I  can  not  well  see  how  it  can  be  argued  that  the 
framers  of  that  instrument  did  not  use  those  words  in  the  sense 
thus  explicitly  established. 

The  whole  current  of  common  law  authority  for  very  many 
years  is  to  the  same  effect.  Blackstone,  Hawkins,  Coke,  Chitty, 
elementary  writers,  as  well  as  the  judges  in  pronouncing  the 
decisions  of  the  courts,  use  the  words  in  the  same  sense,  and 
none  other. 

The  constitution  of  the  United  States,  the  present  and  the 
former  constitutions  of  this  state,  and  those  of  every  state  in  the 
Union,  excepting  only  two,  New  Hampshire  and  Massachusetts, 
use  the  same  expression,  "  grant  pardons,"  thus,  almost  uni- 
versally, signifying  that  the  term  has  obtained  a  precise  and 
definite  meaning. 

Our  own  statutes,  through  all  the  revisions  from  1781,  to  the 
present  time — a  period  of  near  sixty  years — have  been  equallv 


NEW  YORK,  MARCH,  1846.  53 


The  People  v.  Potter. 


guarded  in  the  use  of  the  same  terms,  and  have  been  explicit  in 
conferring  upon  the  governor  the  power  to  attach  conditions  to 
his  pardons  (3  Greenleaf's  L.  of  JV.  F.  1 13;  1  Rev.  L.  of 
1813,  126). 

The  decisions  of  the  courts  in  our  state,  in  several  of  the 
states  of  the  Union,  in  the  courts  of  the  United  States  and  in  the 
courts  of  the  British  empire,  have  all  regarded  these  words  as 
conveying  the  right  to  attach  conditions  to  the  grant  of  a 
pardon. 

In  The  People  v.  James  (2  Caines,  57),  the  prisoner  had  been 
pardoned  on  condition  that  he  would  leave  the  United  States  in 
forty  days,  but  neglecting  to  do  so,  the  same  proceedings  were 
had  against  him  that  have  been  had  in  this  case. 

In  Pease's  Case  (3  John.  Ca.  333),  the  court  for  the  correction 
of  errors,  in  deciding  the  main  point  in  the  case,  expressly  admit 
the  power  of  the  governor  to  annex  conditions  and  restrictions 
to  pardons,  and  say,  "  The  punishment  may  be  mitigated,  or  it 
may  be  changed  from  imprisonment  to  voluntary  transportation." 

In  Smith's  Case  (1  Bailey,  283),  South  Carolina,  a  pardon 
was  granted  on  condition  of  banishment.  The  prisoner,  as  in 
this  case,  complied  so  far  as  to  leave  the  state,  but  returned  in 
violation  of  the  condition.  On  his  arrest,  it  was  insisted  that 
the  governor  had  no  right  to  attach  conditions,  and  it  was  held 
that,  even  without  the  express  authority  given  by  the  consti- 
tution, the  governor  would  have  a  right  to  impose  terms,  and 
the  court  add,  "  all  the  common  law  writers  agree  to  this  in  so 
many  words."  (See,  also,  Addington's  Case,  2  Bailey,  516;  Mary 
Fuller's  Case,  1  McCord,  178;  State  v.  Twitty,  4  Hawks'  North 
Carolina  Rep.  193). 

In  the  United  States  Supreme  Court  (7  Peters,  175),  Ch.  J. 
Marshall  says,  as  this  power  has  been  exercised  from  time 
immemorial  by  the  executive  of  that  nation  whose  language  is 
ours,  and  to  whose  judicial  institutions  ours  bear  a  close  re- 
semblance, we  adopt  their  principles  respecting  the  operation 
and  effect  of  a  pardon,  and  look  into  their  books  for  the  rules 
prescribing  the  manner  in  which  it  is  to  be  used.  Mr.  Wirt, 
when  attorney  general  of  the  United  States,  gave  it  as  his 


54 


DECISIONS  IN   CRIMINAL  CASES. 


The  People  *.  Potter. 


opinion  that  the  power  to  pardon,  as  given  by  the  constitution^ 
is  the  power  of  absolute  and  entire  pardon.  On  the  principle 
that  the  greater  power  contained  the  less,  he  was  of  opinion 
that  the  power  of  pardoning  absolutely  includes  the  power  of 
pardoning  conditionally  (Opinions  of  Attorney  General,  250). 

Butler,  Attorney  General,  ib.  1034,  recommends  a  law  au- 
thorizing the  president  to  commute  and  grant  conditional  par- 
dons, thus  clearly  implying  that  even  under  a  limited  consti- 
tution like  that  of  the  United  States,  the  legislature  could  con- 
fer the  power  on  the  executive;  and  Gilpin,  Attorney  General, 
ib.  1382,  in  his  opinion,  recognizes  the  principle  that  the  rules 
of  the  common  law  govern  as  to  the  operation  of  a  pardon. 

This  principle  being  thus  applicable  to  the  grants  of  power 
under  a  constitution  like  that  of  the  United  States,  which  is 
one  of  specific  grants,  and  into  which  the  common  law  has  not 
been  specially  incorporated,  how  much  more  forcibly  is  it  ap- 
plicable to  a  constitution  like  that  of  the  state,  which  is  general 
in  its  nature,  which  grants  the  whole  legislative  power  of  the 
sovereign,  and  which  adopts  the  common  law  as  a  component 
part  of  itself. 

The  English  books  are  full  of  authorities  upon  the  point  that 
a  pardon  may  be  extended  on  any  condition,  precedent  or  sub- 
sequent, on  the  performance  of  which  the  validity  of  the  pardon 
will  depend  (1  Chitty  Cr.  L.  773;  2  Hawk  PI.  C.  c.  37,  §45;  3 
Tomlins,  13;  Cole's  Case  (in  13  Eliz.),  Moor,  466:  Foxworthy's 
Case,  Holt,  521  (in  1  Ann). 

Banishment  was  first  known  in  England  as  abjuration,  where 
the  party  accused  fled  to  a  sanctuary,  confessed  his  crime,  and 
took  an  oath  to  leave  the  kingdom  and  not  return  without  per- 
mission (4  Bl.  Com.  333;  3  P.  Williams,  37).  This  was  not  as 
a  punishment,  but  as  a  condition  of  pardon.  After  abjuration 
was  abolished,  and  about  the  reign  of  Charles  II,  it  became 
usual  to  grant  pardons  on  condition  of  banishment,  and  that  the 
original  sentence  should  be  revived  on  a  violation  of  the  stipu- 
lations of  its  remission  (Kel.  pre.  4;  Williams,  J.  Felony,  VI; 
1  Ch.  Cr.  L.  789).  And  it  was  usual  to  bind  the  criminal  as 
An  apprentice,  and  both  he  and  his  master  were  liable  to  severe 


NEW  YORK,  MARCH,  1846.  5,3 

The  People  v.  Potter. 

penalties  on  his  return.  Afterwards  the  performance  of  the 
stipulation  of  banishment  was  enforced  by  requiring  security 
from  him  that  he  would  leave  the  country;  and  finally  the  prac- 
tice settled  down  to  that  adopted  in  this  case,  namely,  that  of 
granting  pardons  on  condition,  and  enforcing  the  condition  by 
inflicting  the  original  sentence  upon  the  party  in  case  of  vio- 
lation. 

It  seems  then  that  the  practice  of  granting  conditional  par- 
dons is  sustained  by  the  principles  of  the  common  law,  which 
we  have  adopted  as  the  law  of  the  land;  by  the  practice  of  the 
country  whose  institution  in  this  regard  we  have  borrowed  in 
totidem  verbis;  by  the  provisions  of  the  constitution  of  the 
United  States  and  of  most  of  the  states  of  the  Union;  by  the 
decisions  of  the  courts  of  the  United  States  and  of  our  own 
state,  and  of  other  states  in  the  Union;  by  the  enactments  of 
our  statute  for  over  half  a  century,  and  by  the  practice  of  our 
executive  since  the  formation  of  our  government. 

Against  this  force  of  authority,  we  are  cited  only  to  a  pos- 
sible distinction  between  the  pardoning  power  and  the  power 
to  grant  pardons — a  distinction  which,  if  not  merely  verbal,  is 
scarcely  enough,  in  the  absence  of  authority,  to  combat  the 
dictates  of  good  sense,  that  the  injured  party  has  the  power  to 
prescribe  the  atonement  upon  which  his  forgiveness  shall  rest; 
and  that  the  power  of  pardoning  being  a  fit  one  to  be  intrusted 
to  all  governments,  humanity  and  sound  policy  dictate  that  this 
benign  prerogative  be  as  little  as  possible  fettered  or  embar- 
rassed (Story's  Com.  on  the  Constitution,  §  1492). 

This  view  of  the  case  sanctioning  the  authority  exercised  by 
the  executive  in  imposing  a  condition  upon  the  pardon  granted 
to  Potter,  renders  unnecessary  a  minute  examination  of  another 
view  which  has  been  suggested,  and  which  I  will  merely 
mention.  It  is  this:  that  the  power  to  pardon  is  incident  to 
the  sovereign  power  of  the  state  and  vested  in  the  legislative 
authority;  that  the  legislative  power  of  the  sovereign  people- 
of  this  state  being  by  our  constitution  vested  in  the  legislature, 
the  power  to  pardon  is  in  the  legislature,  notwithstanding  the 
grant  also  to  the  executive:  that  the  legislature  have  a  right  to 


56  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Potter. 

delegate  the  power  to  the  executive,  to  exercise  it  in  accordance 
with  and  subordinate  to  their  will,  and  that  they  have  so  dele- 
gated it  by  the  statutes  which  they  have  passed;  and  that  under 
the  statute  the  executive  has  thus  obtained  authority  to  impose 
conditions. 

This  view  may  be  found  to  be  consistent  with  the  principles 
of  the  common  law  and  with  the  spirit  of  our  institutions,  but 
I  do  not,  under  the  circumstances,  feel  called  upon  to  consider 
or  decide  upon  it. 

I  ought  not  to  dismiss  this  part  of  the  case  without  noticing 
an  objection  which  was  pressed  upon  me  with  much  earnestness, 
to  wit:  that  banishment  being  a  punishment  unknown  to  our 
law,  the  imposition  of  it  as  a  condition  of  the  pardon  was  in 
violation  of  that  provision  of  our  bill  of  rights  which  forbids 
the  infliction  of  cruel  or  unusual  punishments  (1  R.  S.  94,  §  17). 

There  is  no  doubt  that  any  immoral,  impossible,  or  illegal 
condition  would  be  void.  This  is  a  principle  of  the  common 
law  well  established  (Com.  Dig.  Tit.  Condition,  D;  Pease's 
Case,  3  John.  C.  333;  Watson's  Case,  9  Ad.  Sf  Ell.  731). 

And  the  general  language  of  the  statute,  that  the  governor 
may  grant  pardons  "  upon  such  conditions,  and  with  such  re- 
strictions, and  under  such  limitations  as  he  may  think  proper," 
is  to  be  taken  subject  to  this  principle.  His  conditions  must 
not  be  immoral,  impossible  or  illegal.  No  authority  to  impose 
such  conditions  has  been  or  could  be  conferred  upon  him  by  the 
statute.  Therefore,  the  argument  of  the  prisoner's  counsel, 
drawn  from  the  general  language  of  the  statute,  that  it  was 
void  because  it  authorized  the  governor  to  impose  unusual  or 
cruel  punishments,  necessarily  falls  to  the  ground.  These  bar- 
barous practices  are  impliedly  excluded  from  the  enactment, 
unless  it  should  actually  express  them  (per  Lord  Denman,  1  JJ. 
fy  E.  783). 

No  principle  is  better  established  than  this,  that  statutes 
must  be  so  construed  that  all  their  parts,  when  in  pari  matcria, 
shall  be  allowed  to  operate;  and  the  effect  of  that  rule  on  these 
statutes  is  simply,  that  the  governor  may  grant  a  pardon  on  a 
condition  which  does  not  subject  the  prisoner  to  an  unusual  or 


NEW  YORK,   MARCH,   J84G.  57 

The  People  v.  Potter. 

cruel  punishment.  Banishment  is  neither.  It  is  sanctioned  by 
authority,  and  has  been  inflicted,  in  this  form,  from  the  founda- 
tion of  our  government  (Smith's  Case,  1  Bailey,  supra;  James's 
Case,  2  Caines,  57;  Pease's  Case,  in  the  Court  of  Errors,  3  John. 
Ca.  333;  2  Bailey,  516;  1  McCord,  178). 

Second.  The  next  objection  which  I  am  to  consider,  is  that 
founded  upon  the  nature  of  the  condition  imposed  in  this  case, 
that,  namely,  of  banishment  from  the  United  States. 

In  support  of  this  objection,  it  is  insisted  that  the  power  of 
the  governor  is  confined  to  the  territorial  limits  of  the  state; 
that  by  this  condition  he  is  virtually  extending  his  power  be- 
yond those  limits,  and  assuming  to  himself  to  dictate  to  other 
states  whom  they  shall  not  have  as  residents  among  them. 

There  would  be  more  force  in  this  objection  if  the  question 
before  me  grew  out  of  any  attempt  of  the  executive  to  exercise 
his  authority  out  of  the  state;  if,  for  instance,  finding  that  the 
prisoner  was  in  one  of  the  other  states  in  violation  of  the  con- 
dition of  his  pardon,  he  had  demanded  him  as  a  fugitive  from 
justice,  in  respect  to  the  offence  to  which  that  pardon  applied, 
and  had  attempted,  forcibly  or  otherwise,  to  withdraw  him  from 
another  state,  in  order  that  he  might  be  again  subjected  to  the 
jurisdiclion  of  this  state  in  respect  to  that  particular  offence. 

But  such  is  not  this  case.  The  prisoner  is  lawfully  within 
this  state;  and  being  within  it,  its  courts  are  required  to  enforce 
the  'aws  against  him  (Case  of  Smith,  1  Bailey,  283). 

Every  appearance  of  impropriety  is,  however,  dispelled  the 
moment  we  come  to  consider  the  true  nature  of  the  pardon  and 
of  the  condition  attached  to  it.  It  is,  in  fact,  a  contract  between 
the  sovereign  power,  as  represented  quoad  hoc,  by  the  governor 
and  the  prisoner,  that  the  former  will  release  him  from  the  of- 
fence and  its  consequences,  and  that  the  latter  will  withdraw 
himself  from  the  United  States, 

In  this  light  these  conditions  to  a  pardon  have  ever  been 
regarded  by  the  courts,  and  their  practice  has  been  in  conformity 
therewith. 

Almost,  if  not  quite,  every  case  cited  on  both  sides,  on  the 
argument,  takes  this  view  of  it.   1  Chitty's  Cr.  Law  (773)  states 
VOL.  I.  8 


58  DECISIONS  IN  CRIMINAL  CASES. 
"  The  People  v.  Potter. 

Che  doctrine  which  is  sustained  by  all  the  authorities:  "  A  par- 
Jon  may  be  extended  on  any  condition,  precedent  or  subsequent, 
on  the  performance  of  which  the  validity  of  the  pardon  will 
depend,  and  if  he  does  not  perform  the  condition  it  will  be  alto- 
gether void,  and  he  may  be  brought  to  the  bar  and  remanded 
to  suffer  his  original  sentence." 

The  practice  in  England  is,  when  the  jud'/e  recommends  to 
mercy,  for  the  crown  to  signify  its  intention  to  pardon,  and 
then  the  court  let  him  to  bail  to  plead  his  pardon,  and  take  his 
recognizance  to  perform  the  condition  (1  Ch.  Cr.  L.  774;  1  Bl. 
Rep.  479;  per  Lord  Mansfield;  1  Leach,  74;  15  East,  463;  Moor 
Bac.  Jib.  466;  Pardon,  E). 

This  is  entering  the  contract  on  the  part  of  the  prisoner  on 
the  record. 

In  Copeland's  Case  (Kcl.  45),  it  was  held  that  there  was  no 
power  to  commute  the  prisoner's  sentence  without  his  consent, 
and  the  only  means  of  enforcing  the  condition  was,  the  infliction 
of  the  original  sentence  in  case  the  criminal  violated  the  con- 
ditions. But  it  is  useless  lo  multiply  authorities  where  so  many 
abound.  A  reference  to  a  few  will  be  sufficient  (2  Hawk.  Ch. 
37,  §  59,  64,  65;  4  Black.  Com.  402;  5  Bac.  Ab.  292,  Pardon 
E;  13  Pet.  Jib.  82;  Kelygne,  24;  Radcliff's  Case,  Foster  40;  1 
Wilson,  214;  Jenk.  Cent.  p.  12,  ca.  62). 

In  our  country  the  same  doctrine  prevails.  In  Smith's  case 
(1  Bailey,  283),  the  court  say  that  the  offender  has  a  right  to 
accept  or  reject  the  terms  proposed.  He  may  prefer  to  make 
the  reparation  demanded  by  the  law,  or  the  atonement  substi- 
tuted, at  his  election.  The  condition  is  in  effect  a  contract, 
and  to  entitle  the  party  to  the  benefit  he  must  perform  the  con- 
dition, for  that  is  the  only  conclusive  evidence  of  assent  to 
the  grant,  and  from  its  very  nature  the  thing  must  be  done  of 
his  own  accord. 

In  Wilson's  case  (7  Peters,  156),  Chief  Justice  Taney,  then 
attorney  general,  asserts  that  the  whole  current  of  authorities 
establishes  this  principle,  that  unless  a  party  in  some  way 
claims  the  benefit  of  a  nardon,  thereby  denoting  his  acceptance 
of  the  proffered  grace,  the  court  can  not  notice  it;  and  per 


NEW  YORK,  MARCH,  1846.  59 

The  People  v.  Potter. 

Marshall,  Chief  Justice,  in  delivering  the  opinion  of  the  Unit- 
ed States  Supreme  Court,  "A  pardon  is  a  deed,  to  the  validity 
of  which  delivery  is  essential,  and  delivery  is  not  complete 
without  acceptance.  It  may  be  rejected;  and  if  rejected  there 
is  no  power  to  force  it  on  him." 

In  a  more  recent  case  —  that  of  the  Canada  prisoners  —  re- 
ported in  9  Ad.  fy  Ellis,  731,  Lord  Denman,  in  the  Queen's 
Bench,  treats  the  case  as  one  where  a  man  charged  with  crime 
is  permitted  to  obtain  a  pardon,  by  which  his  life  is  spared, 
but  he  binds  himself  to  undergo  a  less  severe  punishment.  And 
Lord  Jlbinger,  in  the  same  case  (5  Mee.  fy  Welsby,  49),  says, 
if  the  condition  was  lawful,  but  the  prisoner  did  not  assent  to 
it,  nor  submit  to  be  transported,  he  can  not  have  the  benefit  of 
the  pardon;  and  that  if  the  condition  on  which  alone,  the  par- 
don was  granted  be  void,  the  pardon  must  also  be  void.  He 
also  asserts  that  if  the  prisoner,  having  assented  to  it,  his 
assent  be  revocable,  we  must  consider  him  to  have  retracted  it 
by  his  application  to  be  set  at  liberty,  and  he  is  unable  to 
avail  himself  of  the  pardon;  he  can  not  plead  a  pardon  which 
he  has  renounced,  &c. 

As  we  are  then  to  regard  the  pardon  and  its  conditions  as  a 
mutual  contract  between  the  criminal  and  the  sovereign  au- 
thority of  the  state,  the  remaining  question  is,  what  is  the  effect 
of  a  violation  of  the  stipulations  entered  into  on  the  part  of  the 
prisoner:  does  it  render  the  pardon  or  only  the  condition  void  ? 

It  is  conceded  on  all  hands  that  if  it  is  a  condition  precedent, 
its  nonperformance  renders  the  grant  void.  It  has  already 
been  seen  that  where  the  condition  is  immoral,  impossible,  or 
illegal,  the  condition  will  be  void,  and  the  grant  good,  and  it 
is  contended  in  this  case  that  the  nonperformance  of  a  condi- 
tion subsequent  does  not  vitiate  the  grant. 

Without  multiplying  authorities  upon  this  point,  I  will  con- 
tent myself  with  referring  again  to  the  case  of  the  Canada 
prisoners,  merely  premising  that  my  researches  have  fully 
sustained  the  soundness  of  the  positions  there  assumed  (9  J3d. 
if  Ell.  731,  5JV/.£  W.  49). 

The  prisoners  were  convicted  in  the   colonial  courts,  and 


60 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Potter. 


sentenced  to  be  executed.  They  were  pardoned  on  condition 
of  being  transported  to  Botany  Bay.  In  the  execution  of  this 
commutation  of  punishment,  they  were  sent  from  tbe  upper  to 
the  lower  province  of  Canada,  and  thence  to  England,  whence 
they  were  to  be  transported  to  their  destination.  On  their 
ai rival  in  England  they  sued  out  a  habeas  corpus  in  the  queen's 
bench,  and  afterwards  in  the  court  of  exchequer,  and  their 
case  was  twice  argued  by  some  of  the  most  eminent  counsel  in 
England.  The  case  is  not  authority  with  us,  but  is  referred  to 
merely  because  it  was  elaborately  argued,  and  the  cases  are 
there  cited  which  establish  as  parts  of  the  common  law  these 
positions: 

That  a  man  can  assent  to  his  own  transportation  when 
authorized  by  a  statute: 

That  if  the  power  to  transport  exists,  it  follows  that  there  is 
a  power  to  do  all  that  is  necessary  to  give  effect  to  the  condi- 
tion: 

That  if  the  Lieut.  Governor  had  no  authority  to  impose  the 
condition,  the  prisoner  is  in  the  situation  he  was  in  before: 

That  the  pardon  can  not  stand  upon  any  supposition  which 
annuls  the  power  to  impose  the  condition: 

And  that  if  the  condition  upon  which  alone  the  pardon  was 
granted,  was  void,  the  pardon  must  also  be  void: 

I  repeat,  all  the  authorities,  ancient  and  modern,  in  England 
and  in  this  country,  sustain  these  positions,  and  I  know  of  no 
principle  which  would  authorise  me  to  disregard  them  (Maxi- 
milian Miller's  case,  Leach  Cr.  L.  74;  2  Bl.  Rep.  797 ;  Ma- 
dan's  case,  Leach,  223). 

In  carrying  out  this  principle,  it  is  held  that  a  party  is  not 
restored  to  competency  as  a  witness  until  he  has  performed  the 
condition  (1  Ch.  Cr.  L.  775;  Leach,  454,  498;  Hob.  67,  82;  4 
Har.  St.  Tr.  582;  Holt,  688;  Sir  Thomas  Ray,  379;  1  Ld. 
Ray,  39;  2  Hale  P.  C.,  278;  Com.  Dig.  Testmoyne,  J],  5; 
Bac.  M.  Par.  H). 

And  that  any  fraud  in  obtaining  the  pardon  rendered  it  void, 
such  as  the  suggestio  falsi  or  suppressio  veri  (3  Inst.  238-  Yel 
43,  47  j  Cro.  Jac.  18,34,  548;  2  Roll,  Jlbr.  188;  Dyer,  352, 


NEW  YORK,  MARCH,  1846. 


The  People  v.  Potter. 


pi.  26;  1  Sid.  41;  3  Tomlins,  13);  and  within  this  category 
is  included,  in  some  of  the  cases,  the  instance  of  a  prisoner 
asking  for  a  pardon  on  conditions  suggested  by  himself,  and 
which  he  afterwards  disregards. 

In  this  connection  it  will  be  necessary  to  note  two  positions 
assumed  by  the  prisoner's  counsel. 

1.  That  the  banishment  imposed  on  Potter  was  a  condition 
subsequent,  and  that  therefore  its  violation  did  not  vitiate  the 
grant.     Without  entering  into  the  wide  field  thus  opened  to  us, 
of  the  effect  of  conditions  of  this  character,  it  will  be  sufficient 
to  say,  that  I  fully  accord  with  the  constitutional  court  of 
South-Carolina,  in  1  McCord,  178,  in  holding  that  his  leaving 
the  United  States  was  a  condition  precedent  to  the  operation 
of  the  pardon,  and  as  the  violation  of  a  condition  precedent 
always  avoids  the  grant,  the  nonperformance  of  this  condition 
renders  the  pardon  merely  nominal. 

2.  That  as  the  person  arrested  upon  a  ca.  sa.}  in  a  civil  suit, 
can  never  again  be  arrested  by  the  prosecuting  creditor,  when 
voluntarily  released  by  him,  whatever  may  have  been  the  con- 
ditions of  his  discharge,   so  by  parity  of  reasoning,  one  dis- 
charged   from    custody,    when    in    execution    on    a    criminal 
proceeding  can  not  be  recaptured.     The  parallel  between  the 
two  cases  is  more  apparent  than  real.     In  the  civil  proceeding, 
the  caption  is  in  satisfaction  of  the  claim  —  such  is  the  form 
of  the  writ  —  the  sheriff  is  commanded  to  take  the  body  in 
satisfaction,  &c.     It  is  not  so  in  criminal  proceedings.     Will 
any  one  say  that  the  caption  of  a  murderer  is  a  satisfaction  of 
his  condemnation  to  death,  or  that  the  mere  arrest  of  a  crimi- 
nal is  a  satisfaction  of  the  judgment  which  condemns  him  to 
imprisonment  for  life  ?     In  civil  proceedings  the  arrest  is  the 
principal  and  the  detention  is  an  incident,  while  in  criminal 
cases  the  caption  is  the  merest  incident  to  the  principal  of 
jontinuing  imprisonment. 

3.  Having  thus  been  led  by  the  force  of  abundant  authority, 
to  the  conclusion  that  the  executive  has  power  to  attach  condi- 
tions to  his  act  of  grace,  and  that  the  violation  of  those  condi  • 


62  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t>    Potter. 

tions  renders  the  deed  of  pardon  void,  the  remaining  question 
is,  whether  the  courts  have  any  power  to  take  cognizance  of 
such  violation.  This  point  seems  to  be  equally  well  settled  bv 
a  long  train  of  adjudications. 

On  the  day  that  the  prisoner  was  brought  to  this  city  from 
New-Orleans,  I  was  waited  upon  by  the  chief  of  police,  who 
communicated  to  me  the  facts  and  inquired  whether  it  was  not 
his  duty  at  once  to  deliver  the  prisoner  to  the  keeper  of  the 
state  prison. 

While  I  was  connected  with  the  state  prison,  I  had  had 
occasion  to  examine  this  question.  A  female  had  been  par- 
doned on  condition  of  leaving  the  state  within  twenty  days, 
and  she  was  found  in  this  city  after  the  expiration  of  that 
time.  I  found  among  the  documents  at  the  prison  the  follow- 
ing opinion  of  the  present  chief  justice,  then  attorney  general: 

ALBANY,  JUNE  19,  1829. 

Gentlemen :  —  Your  favor  of  the  16th  was  not  received  until 
this  day.  You  ask  my  opinion  of  the  course  proper  to  be  pur- 
sued in  the  case  of  a  person  found  within  this  state  after 
having  been  discharged  from  the  state  prison  on  a  pardon 
conditioned  that  he  shall  leave  the  state. 

The  governor  is  authorized  by  statute,  as  well  as  by  common 
law,  to  grant  a  conditional  pardon,  and  it  is  well  settled  that 
if  a  person  be  pardoned  upon  a  condition,  either  precedent  or 
subsequent,  which  he  neglects  to  perform,  the  pardon  is  void, 
and  he  may  be  remanded  to  suffer  his  original  sentence. 

The  statute  has  not  prescribed  any  mode  of  proceeding  in 
such  cases.  At  the  common  law  the  offender  may  be  arrested 
and  committed  to  the  common  prison.  An  order  is  then  made 
by  the  court  in  which  he  was  convicted  (or  some  superior 
court  of  criminal  jurisdiction),  that  he  show  cause  why  execu- 
tion should  not  be  awarded  against  him  on  his  former  convic- 
tion. He  is  then  put  at  the  bar,  the  record  of  conviction 
produced,  and  it  must  appear  that  he  is  the  same  person.  If 
he  plead  that  he  is  not  the  same  person,  a  venire  to  try  that 


NEW  YORK,  MARCH.   1846.  (53 

The  People  v.  Potter. 

fact  is  awarded,  returnable  instanter,  and  if  found  against  him, 
or  if  he  confess  that  he  is  the  person,  the  court  order  execution 
of  the  original  sentence. 

There  are  other  questions  (according  to  the  nature  of  th? 
condition)  for  the  consideration  of  the  court,  as  whether  the 
prisoner  has  had  proper  time  to  comply  with  the  condition  — 
whether  he  has  been  prevented  from  doing  so  by  sickness, 
mental  alienation,  or  the  like,  or  in  case  of  banishment,  whe- 
ther he  had  not  been  brought  back  forcibly  and  against  his 
will. 

The  practice  you  mention  as  having  obtained  in  such  cases, 
of  recommitting  to  the  state  prison,  without  any  warrant  or 
adjudication,  is,  in  my  opinion,  neither  warranted  by  law  or  a 
just  regard  to  personal  liberty. 

I  am  with  great  respect, 

Your  obedient  humble  servant, 

GREENE  C.  BRONSON, 

Att'y  Gen'l. 
George  Tibbetts,  Stephen  Allen  and  Samuel  M.  Hopkins,  Esqrs., 

Commissioners,  &c." 

Acting  upon  the  recollection  of  this  opinion,  I  advised 
against  the  direct  transmission  of  the  prisoner  to  the  state 
prison,  and  suggested  the  propriety  of  his  being  brought  before 
the  oyer  and  terminer,  then  in  session,  to  the  end  that  he  might 
have  an  opportunity  of  pleading  his  pardon,  duress,  or  aught 
else  that  might  entitle  him  to  his  liberty,  of  which  I  deemed  he 
ought  not  to  be  deprived  without  the  opportunity  of  defence. 
He  was  accordingly  brought  before  the  oyer  and  terminer;  a 
petition  was  filed,  asking  that  he  might  be  remanded  in  execu- 
tion of  his  original  sentence,  and  an  order  was  entered  com- 
mitting him  to  custody  until  that  question  could  be  determined. 
Subsequently  the  court  of  sessions  took  cognizance  of  the  case, 
and  made  the  order  in  question  requiring  him  to  show  cause  in 
that  court  why  he  should  not  be  remanded.  By  what  authority 
that  court  assumed  cognizance  of  a  case  of  which  the  court  of 
superior  jurisdiction  had  already  obtained  cognizance,  I  am  yel 


64  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Potter. 

to  learn.  That  point  was  not  argued  before  me  by  the  counsel 
for  the  prosecution.  They  contented  themselves  with  a  gene- 
ral admission  that  the  court  of  oyer  and  terminer  had  not 
jurisdiction  of  the  matter. 

I  do  not  so  understand  the  law.  The  opinion  of  Attorney 
General  Bronson  is  explicit  that  "  an  order  is  then  made  by 
the  court  in  which  he  was  convicted,  or  some  superior  court 
of  criminal  jurisdiction,  that  he  show  cause  why  execution 
should  not  be  awarded  against  him  on  his  former  conviction;" 
and  so  are  the  authorities.  In  James1  case  (2  Caines,  57),  the 
prisoner  had  been  convicted  of  forgery,  not  in  ihe  supreme 
court,  but  in  some  oyer  and  terminer  or  general  sessions,  yet 
he  was  brought  before  the  supreme  court,  as  one  of  superior 
criminal  jurisdiction,  to  show  cause  why  he  should  not  be 
remanded  under  his  former  sentence.  In  Sir  Walter  Raleigh's 
case  (Cro.  Jac.  495),  he  was  attainted  before  commissioners,  yet 
brought  before  the  king's  bench  fifteen  years  afterwards  for 
sentence.  In  Radcliffe's  case  (Foster,  40),  he  was  convicted  in 
the  oyer  and  terminer,  yet  thirty  years  afterwards  brought  up 
in  the  king's  bench  and  sentenced  to  execution.  In  Rex  v. 
Rogers  (3  Burr,  1810),  three  felons  convicted  in  the  oyer  and 
terminer,  were  taken  before  the  king's  bench  for  sentence;  and 
in  Miller's  case  (2  W.  BL),  the  prisoner  convicted  at  the  Old 
Bailey,  and  pardoned,  was  brought  up  before  the  king's  bench, 
and  remanded  on  his  original  sentence. 

These  cases,  and  numerous  others,  where  the  criminal  had 
made  his  escape  before  sentence,  and  was  afterwards  brought 
up  to  receive  sentence,  all  confirm  .the  opinion  given  by  the 
late  attorney  general,  that  the  court  in  which  he  was  convicted, 
or  any  court  of  superior  jurisdiction,  might  enforce  the  execu- 
tion of  the  original  sentence. 

The  supreme  court  or  the  court  of  oyer  and  terminer,  both 
being  courts  of  superior  jurisdiction,  might  entertain  the  case, 
and  having  possession  of  it,  it  was  not  competent  for  the  ses- 
sions, a  court  of  inferior  jurisdiction,  to  interfere  in  the  matter. 

The  court  of  sessions  is  a  court  of  inferior  jurisdiction, 
limited  in  its  powers  mainly  to  those  conferred  by  the  statute; 


NEW  YORK,  MARCH,  1846.  (35 

The  People  v.  Potter. 

but  the  oyer  and  terminer  is  a  court  known  to  the  common  law, 
and  un-ler  the  common  law  is  possessed  of  powers  and  charged 
with  duties  beyond  those  defined  in  the  statute.  Of  those 
duties,  one  of  the  most  important  to  public  liberty  is  that  of 
delivering  the  jail  —  of  seeing  that  every  person  in  confine- 
ment has  an  opportunity  of  having  the  cause  of  his  detention 
inquired  into.  It  is  empowered  to  try  and  deliver  every  p  iso- 
ner  who  shall  be  in  the  jail  when  the  judges  arrive  at  the 
circuit  town,  whenever  and  before  whomsoever  indicted,  and 
for  whatever  crime  committed  (4  Bl.  .Com.  270).  So  that, 
one  way  or  the  other,  the  jails  are  in  general  cleared,  and  all 
offenders  tried,  punished  or  delivered,  twice  every  year:  a  con- 
stitution of  singular  use  and  excellence.  Ibid. 

To  enable  the  court  to  discharge  this  duty,  it  has  been 
clothed  with  the  power  of  bringing  up  to  itself  every  thing 
pending  in  the  sessions;  and  so  that  no  prisoner  shall  be 
removed  out  of  its  jurisdiction,  there  is  an  express  prohibition 
against  the  allowance  of  a  habeas  corpus  in  a  criminal  case 
during  its  sittings,  returnable  elsewhere  than  in  that  court, 
unless  issued  by  itself  (1  R.  S.  758,  §  27).  And  as  it  must 
frequently  happen,  as  it  happened  in  times  past,  that  the  court 
at  its  coming,  or  during  its  session,  shall  find  in  custody  per- 
sons upon  whom  judgment  has  been  pronounced,  but  sentence 
not  yet  executed,  so  it  must  in  the  discharge  of  its  high  duty 
of  delivering  the  jail,  exercise  the  power  which  the  court  has 
in  such  cases  exercised  for  very  many  years,  at  least  since  the 
days  of  Queen  Elizabeth. 

But  the  question  raised  by  the  prisoner's  counsel  is  not, 
which  court  has  power  to  remand  him  on  his  original  convic- 
tion: it  assumes  broader,  bolder  ground,  and  denies  that  any 
court  has  that  power.  I  was  not  referred  to  any  case  that 
sustains  that  denial,  but  I  have  found  many  fhat  maintain  the 
converse  of  the  proposition.  James'  case  in  2  Caines,  Smiths' 
case  in  1  Bailey,  Fuller's  case  in  1  McCord,  Wilson's  case  in 
7  Peters,  are  all  cases  in  this  country,  where  the  power  is 
recognised  and  enforced,  and  the  common  law  authorities  are 
abundant  and  explicit  on  the  point  (Watson's  case,  9  Jid.  Sf 

VOL.  I.  9 


66  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Potter. 

Ell.  731;  5  Mee.  if  W.  49;  Miller's  case,  Leach,  74;  Madan's 
cast,  Leach,  223;  Rex  v.  Miller,  2  Bl.  Rep.  797). 

In  Miller's  case,  in  1771  (Leach,  74),  the  prisoner  was  in- 
dicted for  being  at  large  contrary  to  the  conditions  of  his 
pardon;  but  in  Madan's  case,  in  1780  (Leach,  223),  the  prisoner 
was  ordered  to  show  cause,  as  suggested  in  the  attorney  gene- 
ral's opinion,  and  a  jury  summoned  instanter  to  try  the  ques- 
tion of  identity,  and  on  their  finding  he  was  remanded  on  his 
original  sentence.  And  so  in  Radcliffe's  case  (Foster,  40), 
where  the  prisoner  was  ordered  for  execution  when  thirty  years 
had  elapsed  since  his  conviction. 

In  those  cases  it  is  distinctly  ruled,  that  the  prisoner  having 
broken  the  condition,  he  remained  in  the  same  state  in  which 
he  was  at  the  time  the  pardon  was  granted,  viz.,  under 
sentence,  and  should  be  remanded  to  his  original  sentence.  In 
some  of  the  cases  the  prisoners  were  executed  in  the  exercise 
of  this  authority  And  in  one  case,  it  is  said,  the  circumstan- 
ces confer  the  authority,  and  no  warrant  could  enlarge  it. 

Why  should  it  not  be  so  ?  Are  our  courts  so  imperfectly 
organized  that  a  felon,  under  sentence  of  death  or  imprison- 
ment, can  seek  for  and  obtain  a  remission  of  his  offence  on 
conditions  proffered  by  himself,  and  then  violating  the  condi- 
tions, be  permitted  to  set  the  authority  of  the  state  at  defiance, 
and  say  there  is  no  power  to  punish  the  fraud  he  may  have 
perpetrated,  or  to  enforce  the  contract  he  may  have  made  1 

The  authority  of  the  law  is  not  so  imperfect  but  in  criminal, 
as  well  as  in  civil  proceedings,  it  may  be  invoked  to  enforce 
the  dictates  of  common  sense  and  the  obligations  of  good  faith. 

Under  the  view  which  I  have  thus  taken  of  the  case,  the 
prisoner  must  be  remanded  to  custody;  and  the  district  attor- 
ney will  draw  up  an  order  accordingly. 


NEW  YORK,  OCTOBER,  1846.  57 


SUPREME  COURT.    At  Chambers.     October,  1846.     Before  Ed- 
monds, Circuit  Judge. 

In  the  matter  of  GEORGE  KIRK,  a  fugitive  slave. 

A  fugitive  slave  can  be  retaken  and  returned  to  service,  only  on  the  demand  of 
his  owner,  or  his  agent  or  attorney. 

The  power  of  legislating  on  the  subject  of  fugitives  from  service  is  exclusive 
in  the  government  of  the  TJ.  S.,  and  it  is  not  competent  for  state  authorities 
to  add  to.  or  interfere  with  the  subject. 

The  statute  of  the  state  of  New  York  (I  Rev.  St&t.  659,  $  15),  which  allows 
the  master  or  commander  of  a  vessel,  in  case  a  slave  shall  have  concealed 
himself  on  board  his  vessel  and  thus  escaped  to  this  state,  to  recapture  such 
fugitive,  and  take  him  before  the  mayor  or  recorder,  for  tho  purpose  of  ob- 
taining a  warrant  for  his  removal  from  the  state,  is  repugnant  to  the  constitu- 
tion of  the  U.  S.,  and  therefore  void. 

On  the  22d  October,  1845,  on  a  petition  presented  by  Lewis 
Napoleon,  setting  forth  that  a  colored  boy,  whose  name  was 
unknown,  was  closely  confined  on  board  the  brig  Mobile,  lying 
at  the  foot  of  Maiden  Lane,  and  bound  in  chains,  the  circuit 
judge  allowed  a  writ  of  habeas  corpus,  returnable  forthwith  in 
the  oyer  and  terminer  then  sitting;  which  was  duly  served,  and 
the  boy  brought  before  the  court,  when  the  following  return 
was  made  to  the  writ: 

I,  Theodore  Buckley,  master  of  the  brig  Mobile,  do  return  to 
the  annexed  writ  of  habeas  corpus,  that  a  colored  man  calling 
himself  George,  the  person  now  present,  at  the  time  of  the  ser- 
vice of  said  writ  was  under  my  restraint,  and  that  I  claim  to 
hold  him  under  rny  restraint,  as  a  fugitive  from  service  in  the 
state  of  Georgia,  under  and  by  virtue  of  the  laws  of  which  state 
he  is  held  to  labor  and  service  as  the  slave  of  Charles  Chapman, 
of  Bryan  county,  in  said  state  of  Georgia. 

And  I  do  further  return,  that  said  George  covertly  and  pri- 
vately, against  my  knowledge  and  consent,  with  a  view  to  effect 
his  escape  from  the  service  to  which  he  was  lawfully  held,  under 
and  by  virtue  of  the  laws  of  the  state  of  Georgia,  secreted  and 
concealed  himself  on  board  the  brig  Mobile,  of  which  I  am 


68 


DECISIONS  IN  CRIMINAL  CASES. 


lu  the  matter  of  George  Kirk. 


master,  while  lying  at  the  port  of  Savannah,  in  the  said  state 
of  Georgia;  that  said  vessel  sailed  from  said  port  on  the  thir- 
teenth of  October  instant  for  the  port  of  New  York,  without  any 
Icnowledge  on  my  part  of  the  concealment  on  board  said  vessel  of 
said  George;  that  while  on  the  high  seas  on  her  said  passage,  in 
latitude  34  deg.  10  m.  N.,  longitude  75  deg.  W.,  the  said  vessel 
being  at  the  time  without  the  jurisdiction  of  the  state  of  Georgia, 
to  wit,  on  the  fifteenth  day  of  October,  one  thousand  eight  hund- 
red and  forty-six,  the  said  George  was  discovered  concealed  in 
the  fore  steerage  of  said  vessel,  covered  with  a  sail;  and,  on 
being  questioned,  admitted  that  he  was  the  slave  of  the  afore- 
named Charles  Chapman,  and  that  he  had  secreted  himself  on 
board  of  said  vessel  with  a  view  to  effect  his  escape  from  the 
service  to  which  he  was  lawfully  held,  under  and  by  virtue  of 
the  laws  of  said  state  of  Georgia,  as  the  slave  of  the  said 
Charles  Chapman. 

I  do  further  return,  that  the  state  of  Georgia  is  an  independ- 
ent and  sovereign  state,  having  full  power  and  authority  to 
govern  and  regulate  all  matters  of  internal  social  polity  of  said 
state,  not  by  the  terms  or  spirit  of  the  federal  compact  surren- 
dered to  the  government  of  the  United  States;  that,  for  more 
than  one  hundred  and  fifty  years  past,  the  said  state  of  Georgia, 
as  a  colony  of  Great  Britain,  and  in  connection  with  her  sister 
colonies,  by  her  declaration  of  independence  as  a  sovereign 
state,  has  continually  and  without  interruption  held  and  pos- 
sessed a  certain  internal  domestic  institution  called  slavery; 
that  the  existence  of  such  institution  has  been  from  time  to 
time,  by  competent  authority,  recognized  as  a  right  reserved 
and  secured  to  said  state,  and  within  the  spirit,  meaning  and 
guaranties  of  the  said  federal  compact;  that  the  said  institution 
was  authorized  and  provided  for  by  the  laws  of  Great  Britain, 
whereof  the  first  settlers  and  the  colonists  of  said  Georgia  were 
and  always  continued  to  be  loyal  subjects,  until  the  year  one 
thousand  seven  hundred  and  seventy-six,  when  the  said  colo- 
nists, by  an  overt  act,  declared  themselves  to  be,  in  common 
with  the  inhabitants  of  divers  other  colonies  and  provinces, 
free  and  independent  of  the  said  government  of  Great  Britain, 


NEW  YORK,  OCTOBER,  1816,  gg 

In  the  matter  of  George  Kirk. 

that  the  said  colonists  did  not,  in  consequence  of  said  declaration 
of  independence,  in  fact  or  in  design,  remit  or  relinquish  their 
right  to  regulate  and  govern  their  own  internal  affairs  and 
socia1.  polity;  but,  on  the  contrary,  did  thereby  design  and  intend 
more  fully  and  freely  to  assert  and  maintain  said  rights. 

That  in  and  by  the  said  institution  so  held,  possessed  and 
enjoyed  by  the  said  state  by  long  usage  and  of  right,  and  under 
the  paramount  law  of  the  land — that  is  to  say,  under  the  con- 
stitution and  laws  of  the  United  States — certain  persons,  of 
whom  the  said  George  is  one,  have  been  and  are  held  to  labor 
and  service  within  the  said  state  of  Georgia,  and  are  held  and 
owned  as  property,  and  protected  and  guarded  by  the  laws  of 
said  state,  and  the  happiness  and  well-being  of  said  persons  are 
secured  by  said  laws. 

That,  nevertheless,  for  many  years  last  past,  divers  malicious 
and  evil  disposed  persons,  residents  of  other  states,  regardless 
of  the  laws  of  the  land,  and  treating  with  contempt  the  consti- 
tutional and  rightful  exponents  of  said  laws,  have  assailed  said 
institution,  and  have  sought  by  fraud,  violence,  and  other  de- 
vices known  to  the  wicked,  wrongfully  and  seditiously  to  cause 
insurrections  among  those  persons,  and  thereby  to  cause  the 
citizens  of  said  state  of  Georgia  to  be  exposed  to  robbery, 
assassination  and  general  anarchy;  and  although  these  evil 
designs  and  attempts  have  hitherto  been  hindered  and  checked 
by  the  firmness  and  loyalty  of  the  national  government  of  the 
United  States,  yet  the  said  evil  disposed  persons  have  organized, 
and  in  many  instances  have  executed,  a  system  of  robbery;  and, 
in  disregard  of  the  word  of  God  denouncing  such  doings,  have 
feloniously  abducted  and  carried  away,  and  encouraged  the 
escape  of  divers  such  persons  from  the  possession  of  their  law- 
ful owners.  That  the  said  state  of  Georgia,  in  discharge  of  its 
political  duty  as  a  government  of  and  for  the  people  of  said 
state,  has,  under  the  constitution  of  the  United  States,  from 
time  to  time  passed  and  enacted  various  laws  to  the  end  that 
the  people  of  said  state  should  be  protected  against  the  wicked 
acts  and  designs  of  such  evil  disposed  persons,  and  that  the 
property  of  the  good  people  of  said  state  should  be  protected 


70  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

and  preserved  to  the  said  citizens  under  the  law  of  the  land; 
and  in  and  by  which  said  laws  it  is,  among  other  things, 
enacted  as  follows: 

§  24.  "  It  shall  and  may  be  lawful  for  every  person  to  take, 
apprehend  and  secure  any  runaway  or  fugitive  slave;  and  they 
are  hereby  directed  and  required,  within  forty-eight  hours  after 
such  taking,  apprehending  and  securing  (otherwise  such  person 
to  be  construed  and  taken  as  a  harborer  of  such  runaway  or 
fugitive  *bive),  to  send  such  slave,  if  convenient,  to  the  master 
or  other  person  having  the  care  and  government  of  such  slave, 
if  the  person  taking  up  or  securing  such  slave  knows,  or  can 
without  difficulty  be  informed,  to  whom  such  slave  belongs." 

§  34.  "  If  any  person  shall  conceal,  harbor,  hide,  or  cause  to 
be  concealed,  harbored  or  hidden,  any  slave  or  slaves  to  the 
injury  of  the  owner  or  owners  thereof,  such  persons  so  offending 
shall,  on  conviction,  be  sentenced  to  be  imprisoned  in  the  peni- 
tentiary, at  hard  labor,  for  any  period  of  time  not  exceeding  two 
years.  Provided,  nevertheless,  that  on  the  trial  for  this  offence, 
the  person  charged  with  it  shall  be  acquitted  if  he  or  she  had 
an  apparent  well  founded  claim  to  the  slave  or  slaves  so  har- 
bored and  concealed,-  and  on  every  conviction  for  concealing  or 
harboring  a  slave  or  slaves,  the  owner  or  owners  of  such  slave 
or  slaves  may  recover  damages  by  civil  suit  for  the  loss  of  the 
labor  and  services  of  such  slave  or  slaves,  notwithstanding  the 
raid  conviction." 

§  35.  "  If  any  person  shall  remove  and  carry  or  cause  to  be 
removed  and  carried  away  out  of  this  state  any  slave  or  slaves, 
or  out  of  the  county  where  such  slave  or  slaves  may  be,  without 
the  consent  of  the  owner  or  owners  of  said  slave  or  slaves,  any 
person  so  offending  shall,  on  conviction,  be  sentenced  to  un- 
dergo an  imprisonment  in  the  penitentiary,  at  hard  labor,  for 
any  period  of  time  not  exceeding  seven  years." 

I  do  further  return,  that  Charles  Chapman,  of  Bryan  county, 
state  of  Georgia,  is  interested  in  the  detention  of  said  George. 

THEODORE  BUCKLEY. 

Sworn  in  open  court,  this  23a  uay  of  October,  1846. 


NEW  YORK,  OCTOBER,  1846. 


In  the  matter  of  George  Kirk. 


HENRY  VANDERVOORT,  Clerk  of  Oyer  and  Terminer. 
J.  Bowditch  Blunt,  of  Counsel. 

To  this  return,  Mr.  John  Jay,  for  the  prisoner,  interposed  a 
general  demurrer,  and  Mr.  Blunt  joined. 

John  Jay  and  J.  White,  for  the  demurrer,  made  the  following 
points: 

I.  The  common  law  of  all  nonslaveholding  states  is,  that 
foreign  slaves  are  no  longer  such  after  their  removal  into  a  non- 
slaveholding state  (Somerset's  Case,  20  How.  St.  Tr.  79;  Story's 
Con.  Laws,  p.  92,  and  Cases;  Forbes  v.  Cochran,  2  B.  and  Cr. 
448). 

II.  The  question,  therefore,  first  presented  is,  how  far  is  the 
operation  of  this  common  law  abridged  by  the  constitution  and 
laws  of  the  United  States? 

The  constitution  provides,  "  no  person  held  to  service  or 
labor  in  one  state  under  the  laws  thereof,  escaping  into  another, 
shall,  in  consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  delivered  up  ON 
THE  CLAIM  OF  THE  PARTY  to  whom  such  service  or  labor  may  be 
due  (jirt.  4,  sec.  2,  sub.  3). 

The  law  of  congress  authorizes  the  owner,  his  agent  or 
attorney,  to  seize  the  fugitive,  take  him  before  a  judge  or  magis- 
trate, and  upon  proof,  oral  or  by  affidavit,  of  the  service  due,  it 
shall  be  the  duty  of  the  judge,  &c.,  to  grant  a  warrant  to  the 
party  or  agent  to  remove  (  Story's  Laws  U.  S.  vol.  1,  p.  285,.  12 
Feb.  93). 

III.  The  judge  must  be  satisfied  from  the  "  proof"  of  thret 
things:   1st.  That  by  the  laws  of  Georgia  the  negro  is  held  to 
service  or  labor;  2d.  That  the  person  to  whom  the  service  or 
labor  is  due,  desires  to  reclaim  the  fugitive;  3d.  That  the  negro 
is  a  fugitive. 

IV.  Neither  of  these  three  things  are  shown,  because,  1st 
The  allegation  is  (in  the  return),  that  by  the  laws  of  Georgia 
the  negro  is  held  to  labor  as  a  slave.    Foreign  Jaws  can  not  be 


72  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

proven  in  this  way;  2d.  There  is  no  allegation  that  the  negro 
is  a  slave — no  terms  of  servitude  set  forth;  3d.  The  claim  made 
is  in  derogation  of  the  natural  right  of  the  negro,  and  must  be 
clearly  proven;  4th.  It  does  not  appear  that  the  negro  left 
without  the  consent  of  the  owner;  5th.  He  is  not  claimed  by 
Chapman,  or  by  his  agent  or  attorney. 

V.  Concede,  therefore,  that  the  negro  was  the  property  of 
Chapman;  the  defendant  has  no  right,  in  fact,  to  the  custody, 
because,  1st.  He  shows  no  authority  to  act  for  Chapman;  2nd. 
He  claims  no  interest  in  the  negro. 

The  right  to  the  service  is  a  personal  right,  given  by  positive 
municipal  law;  and  the  court  and  a  stranger  can  not  exercise 
or  claim  it,  because  excluded  both  by  the  constitution  and  the 
law  of  1793. 

VI.  Neither  has  the  defendant  the  right  to  the  custody  by 
the  federal  law  or  court,  by  the  law  of  this  state  or  of  Georgia. 

1st.  He  can  not  claim  under  the  first,  because  he  is  neither 
owner,  agent  or  attorney;  2nd.  Nor  under  the  second,  because 
our  law  does  not  recognize  the  institution  of  slavery,  except 
under  the  compulsion  of  federal  legislation  and  the  federal  con- 
stitution. Beyond  their  actual  and  positive  requirements,  it 
knows  no  slave  and  no  slavery:  3d.  The  third  gives  no  right 
here,  because  the  laws  of  Georgia  were  designed  to  operate 
upon  the  citizens  of  Georgia  within  the  jurisdiction  of  Georgia. 
Beyond  the  limits  of  the  state  they  have  no  binding  obligation; 
4th.  Our  courts  administer  foreign  laws  ex  comitate — but  such 
law  has  no  force  here  ex  proprio  vigore,  nor  will  it  be  adminis- 
tered if  violative  of  justice,  natural  right,  morality,  or  settled 
policy;  as  the  law  of  Georgia  is  violative  of  each  and  all,  it 
will  not  be  administered. 

VII.  The  negro  when  discovered  was  without  the  jurisdiction 
of  Georgia,  and  every  othet  state  of  the  Union.    The  respondent 
could  not,  therefore,  have  arrested  him  by  virtue  of  the  law  of 
Georgia.     He  was  beyond  its  operation.     Nor  by  any  law  of 
the  federal  government,  for  there  is  none.     The  defendant  was 
guilty,  therefore,  of  a  trespass,  and  his  claim  to  the  custody  of 
the  negro  is  founded  in  tort. 


NEW  YORK,  OCTOBER,   1846.  73 

In  the  matter  of  George  Kirk. 

VIII.  If  the  defendant  is  the  agent  of  Chapman,  he  must  be 
the  general  agent,  as  no  special  agency  for  the  purpose  of  this 
reclamation  is  shown. 

If  this  be  so,  then,  as  he  voluntarily  brought  the  negro  to  this 
port,  it  was  the  act  of  the  principal,  and  the  negro  was  ipso 
facto  free  (Commonwealth  v.  Jlver,  18  Pick.  143). 

But  no  agency  is  shown,  and  none  will  be  presumed,  as  the 
law  of  this  state  has  no  intendments  against  human  liberty. 

Mr.  Blunt,  in  reply,  insisted, 

1.  That  the  respondent  is,  under  the  laws  of  Georgia,  the 
agent  of  the  master  of  the  slave;  and  under  the  constitution  of 
the  United  States  and  the  laws  of  congress,  has  a  right  to  retake 
him  and  return  him  to  Georgia. 

2.  That  under  the  state  statute  (1  Rev.  Stat.  659,  §  15),  the 
respondent  has  a  right  to  the  custody  of  the  boy,  in  order  to 
take  him  before  the  mayor  or  recorder,  to  the  end  that  he  may 
obtain  a  certificate  to  warrant  his  returning  him  to  the  state  of 
Georgia. 

On  the  27th  October,  Judge  Edmonds  delivered  the  opinion 
of  a  majority  of  the  court. 

By  the  United  States  constitution,  art.  4,  §  2,  a  fugitive  from 
service  can  be  claimed  only  by  the  party  to  whom  the  service 
is  due. 

By  the  act  of  1793  (1  Story  Laws  of  U.  S.  285),  in  case  of 
the  escape  of  a  person  held  to  labor,  the  person  to  whom  such 
service  may  be  due,  his  agent  or  attorney  is  empowered  to  seize 
or  arrest  such  fugitive  and  take  him  before  a  proper  officer,  to 
the  end  that  a  warrant  may  be  obtained  for  removing  him  to 
the  state  from  which  he  had  fled. 

As  I  read  and  understand  this  statute,  it  clearly  contemplates 
that  the  right  to  reclaim  a  fugitive  slave  shall  not  be  exercised 
except  by  due  process  of  law,  and  never  vi  et  armis.  Such, 
at  least,  was  the  contemporaneous  interpretation  by  congress 
of  this  provision  in  the  constitution,  and  would  forbid  to  the 
owner  —  and  if  to  him,  then  surely  to  his  agent  or  attorney  — 

VOL.  I.  10 


74  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

the  right  by  strong  hand,  by  fastened  hatches,  blows  and  hand- 
cuffs, to  enforce  a  reclamation.  And  such  a  construction 
seemed  to  me  most  consonant  with  the  principle  of  our  institu- 
tions, which  forbids  that  any  one  shall  be  deprived  of  life,  lib- 
erty or  property,  except  by  due  course  of  law. 

The  Supreme  Court  of  the  United  States,  however,  seems,  in 
the  case  of  Prigg  v.  Com.  of  Penn.  (16  Peters,  539),  to  have 
intimated  a  different  opinion,  though  as  that  point  was  not 
necessarily  before  them,  and  as  the  question  submitted  to  them 
by  consent  was  the  constitutionality  of  a  law  of  Pennsylvania, 
and  the  power  of  its  legislature  to  pass  any  law  upon  the  sub- 
ject, it  may  well  be  doubted  whether  their  remarks  were  not 
obiter  dicta.  But  if  they  are  otherwise  —  if  pertinent  and  de- 
cisive, they  are  still  carefully  guarded  with  the  qualification, 
that  the  party  may  "  claim  and  retake  his  wife,  child  or  servant, 
wherever  he  happens  to  find  them,  so  it  be  not  in  a  riotous 
manner  or  attended  with  a  breach  of  the  peace,"  "  and  the 
owner  may  seize  and  recapture  his  slave  whenever  he  can  do 
.-t  without  any  breach  of  the  peace  or  any  illegal  violence." 

The  general  language  of  the  return  in  this  case,  and  the 
;ight  assumed  under  it,  might  justify  the  resort  to  illegal  vio- 
lence in  seizing  and  retaking  the  slave.  The  right  to  retake 
him  or  to  hold  him  in  durance,  is  in  the  return  founded  on  the 
asserted  fact  that  he  is  a  fugitive  from  service  in  the  state  of 
Georgia,  under  and  by  virtue  of  the  laws  of  which  state  he  is 
held  to  labor  and  service  as  the  slave  of  Charles  Chapman,  of 
Bryan  county  "  in  said  state,"  and  the  fact  that  he  had  concealed 
himself  on  board  the  vessel  for  the  purpose  of  escaping  from 
such  servitude.  If  this  fact  alone,  without  qualification  without 
any  averment  that  the  restraint  was  without  illegal  violence, 
would  justify  this  restraint,  then  they  would  of  necessity  justify 
restraint  in  a  riotous  manner  or  by  a  breach  of  the  peace. 

That  could  not  be  defended  in  the  owner,  and  of  course  not 
in  his  agent  or  attorney. 

If  it  were  otherwise,  the  master  of  the  vessel,  in  this  case, 
would  be  justified  in  holding  the  slave,  at  the  point  of  the  bay- 
onet, with  closed  hatches  and  with  chains. 


NEW  YORK,  OCTOBER,  1846.  75 

In  the  matter  of  George  Kirk. 

But  it  is  unnecessary  to  dwell  upon  this  consideration,  for 
the  master  of  the  vessel  can  not  justly  be  regarded  as  the  agent 
or  attorney  of  the  owner.  It  is  not  pretended  that  he  has  any 
express  authority  from  the  owner.  The  facts  of  the  return  pre- 
clude the  idea.  It  is  contended  that  the  authority  is  implied 
from  the  laws  of  Georgia. 

To  this  claim  there  are  several  very  conclusive  answers. 

1.  The  laws  of  Georgia  do  not  operate  beyond  her  territory. 
From  the  first  moment  that  the  respondent  discovered  the  boy 
on  board  his  vessel  and  began  the  exercise  of  his  control  over 
him,  until  the  present  time,  he  has  been  without  the  jurisdiction 
of  Georgia,  beyond  her  territory,  and  beyond  the  operation  of 
her  laws.     And  to  allow  this  claim   would  be  in  effect  to  call 
upon  the  magistrates  of  this  state,  within  our  territory,  to  ex- 
ecute the  laws  of  Georgia,  not  to  enforce  a  right  which  had 
become  perfect   within   the    territory,   but   one  that   had  no 
beginning  even  till  her  boundaries  had  been  passed.     I  am  not 
aware  that  the  obligation  of  one  state  to  give  full  faith  and 
credit  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  state,  has  ever  been  carried  to  that  extent.  How  can 
it  be  without  subjecting  the  territory  of  every  state  to  the  juris- 
diction of  at  least  twenty-seven  independent  sovereignties? 

2.  The  laws  of  Georgia  do  not  of  themselves  contemplate 
any  such  agency.     It  is  true  that  by  those  laws  any  person  may 
apprehend  a  fugitive  slave  and  return  him  to  his  master.     But 
this  confers  no  special  authority  upon  the  respondent  to  the  ex- 
clusion of  every  body  else.     "  Every  person  "  may  do  it,  and 
how  can  it  be  said  that  this  makes  him  more  than  any  other 
person  the  owner's  agent?     Every  person  may  just  as  well  be 
such  agent  as  the  respondent. 

But  that  statute  in  its  very  terms  is  intended  to  operate  within 
the  territory  of  Georgia,  and  not  beyond  it.  Or  why  the 
provision  that  within  forty-eight  hours  after  the  apprehension, 
the  slave  shall  be  sent  back  to  his  master?  If  the  manucaptor 
in  Maine  should  detain  him  forty-eight  hours,  forty-eight  months 
or  forty-eight  years,  could  the  jurisdiction  of  Georgia  reach  him 
with  its  penal  inflictions?  Why  the  provision  that  he.  who 


76  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

harbors  the  slave  shall  be  confined  in  the  penitentiary?  Could 
a  citizen  of  New  York  be  condemned  to  the  penitentiary  of 
Georgia  for  harboring  the  slave  in  New  York? 

It  is  evident  that  the  statute  was  calculated  only  to  operate 
within  the  territory  of  Georgia,  and  the  sovereign  authority  of 
that  state  would  doubtless  be  not  a  little  surprised  to  learn  that 
so  wide  a  range  of  authority  was  claimed  for  its  enactments. 

Numerous  difficulties  would  spring  from  the  establishment 
of  the  principle  contended  for.  Though  in  this  case  there  is 
no  reason  to  apprehend  that  aught  would  be  done  that  con- 
science and  the  law  would  not  sanction,  yet  it  is  worth  while 
to  consider  the  effect  of  the  decision  in  case  it  should  be  drawn 
into  a  precedent. 

How  long  may  the  master  of  a  vessel,  under  such  circumstan- 
ces, detain  the  slave  within  our  borders  ?  Days,  months,  or 
years  ?  What  security  is  to  be  afforded  that  the  slave  will  be 
returned  to  the  person  entitled  to  his  service,  and  not  be  sold 
elsewhere  in  bondage  ?  What  is  there  to  prevent  our  own  free 
citizens  from  being  carried  away  into  slavery  ?  Our  protec- 
tion would  be  very  imperfect,  if  the  law  should  be  so  estab- 
lished. 

As  then  the  respondent  can  not  with  propriety  be  regarded 
as  the  agent  of  the  owner,  and  as  such  owner  does  not  present 
a  claim  to  the  services  of  this  boy,  either  by  himself  or  by  his 
agent  or  attorney,  the  prisoner  can  not  be  held,  under  the 
constitution  or  laws  of  the  United  States,  as  a  fugitive  from 
service,  and  must  be  discharged,  unless  he  can  be  held  under 
the  laws  of  our  own  state. 

Our  Rev.  Stat.  (1  R.  S.  659,  §15),  contain  a  provision  that 
whenever  a  person  of  color,  owing  service  in  another  state, 
shall  secrete  himself  on  board  a  vessel  and  be  brought  into 
this  state  in  such  vessel,  the  captain  rriay  seize  him  and  take 
him  before  the  mayor,  &c.,  who  may  inquire  into  the  circum- 
stances and  give  a  certificate,  which  shall  be  a  sufficient 
warrant  to  the  captain  to  carry  or  send  such  person  of  color  to 
the  port  or  place  from  which  he  was  brought.  And  on  the 
argument,  it  was  suggested  that,  non  constat,  the  respondent 


NEW  YORK,  OCTOBER,   1846.  77 

In  the  matter  of  George  Kirk. 

held  him  in  custody  for  the  purpose  of  taking  him  before  an 
officer  under  such  statute. 

It  kas  been  well  questioned  on  the  argument,  whether  our 
legislature  had  any  authority  to  enact  such  a  statute. 

In  Prigg's  case  (16  Pet.  617),  Story,  J.,  says,  the  legislation 
of  congress,  if  constitutional,  must  supersede  all  state  legisla- 
tion upon  the  same  subject,  and  by  necessary  implication 
prohibit  it.  For  if  congress  have  a  constitutional  power  to 
regulate  a  particular  subject,  and  they  do  actually  regulate  it 
in  a  given  manner,  and  in  a  certain  form,  it  can  not  be  that 
the  states  have  a  right  to  interfere. 

In  Houston  v.  Moore  (5  Wheat.  1),  it  is  expressly  held,  that 
where  congress  have  exercised  a  power  over  a  subject  given 
them  by  the  constitution,  it  is  not  competent  for  state  legisla- 
tion to  add  to  the  provisions  of  congress. 

In  Prigg's  case  (16  Pet.},  the  court  held  that  the  power  of 
legislation  on  the  subject  is  exclusive  in  the  national  govern- 
ment, and  cite  with  approbation  the  language  of  Chief  Justice 
Marshall  in  Sturgiss  v.  Crowninshield  (4  Wheat.}.  "  Wher- 
ever the  terms  in  which  a  power  is  granted  to  congress,  or  the 
nature  of  the  power  require  that  it  should  be  exclusively  exer- 
cised by  congress,  the  subject  is  as  completely  taken  from  the 
state  legislatures  as  if  they  had  been  forbidden  to  act." 

And  after  discussing  the  evils  that  might  arise  from  state 
interference,  conclude,  surely  such  a  state  of  things  never  could 
have  been  intended  under  such  a  solemn  guarantee  of  right 
and  duty. 

The  nature  and  objects  of  the  provisions  imperiously  require, 
that  to  make  it  effectual  it  should  be  exclusive  of  state  authority. 

But  still  the  police  power  is  left  to  the  states,  so  that  the 
rights  of  the  owners  be  in  no  just  sense  interfered  with. 

And  whether  the  provisions  of  our  revised  statutes  are  con- 
stitutional or  not,  depends  upon  this  question  —  whether  it  was 
intended,  and  would  necessarily  operate,  merely  to  advance 
and  enforce  the  rights  of  the  owner,  or  to  secure  the  state  from 
the  depredation  and  evil  example  of  the  fugitive  ?  If  the 
former,  the  statute  can  not  be  sustained.  Yet  in  this  case  it  is 


78 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  George  Kirk. 


invoked  solely  for  the  benefit  of  the  owner,  and  the  statute 
provides  not  that  the  fugitive  shall  be  removed  from  our  terri- 
tory—  which  would  be  all  that  would  be  necessary  if  our  own 
welfare  alone  was  consulted  —  but  that  he  shall  be  delivered 
up  to  the  master  of  the  vessel,  lo  the  end  that  he  may  be 
carried  back  to  the  port  from  which  he  was  brought. 

The  constitutionality  of  this  provision  of  our  revised  statutes 
may,  therefore,  well  be  questioned. 

But  it  is  not  necessary  to  decide  that  point.  It  is  enough  that 
it  is  no  where  in  the  return  alleged  that  the  respondent  claims, 
or  did  claim,  to  hold  the  slave  for  any  such  purpose.  The 
claim,  as  has  already  been  stated,  is  founded  solely  on  the  fact 
that  George  is  a  slave;  and  that  fact  is  set  forth  in  the  return 
in  such  general  terms,  that  at  one  moment  it  is  urged  as  suffi- 
cient to  justify  a  claim  to  hold  him  as  the  agent  of  the  owner, 
and  at  another  as  the  captain  of  the  vessel;  at  one  instant  as 
justified  by  a  well  defined  provision  of  our  national  constitu- 
tion, and  at  another  by  a  doubtful  local  statute. 

The  fact  set  out  in  the  return  does  indeed  support  the  one 
claim  as  well  as  the  other.  But  that  circumstance  of  itself 
shows  that  the  averment  is  too  defective  to  be  available  under 
either  aspect.  Besides,  ihe  fact  would  justify  a  still  broader 
clajm,  that,  namely,  of  any  person  who  should  please,  within 
our  territory,  to  arrest  him  as  a  fugitive  from  service. 

If  the  respondent  was  in  fact  holding  the  boy  in  pursuance 
of  this  statute,  and  for  the  purpose  of  taking  him  before  the 
mayor,  that  his  liability  in  servitude  might  be  adjudicated 
upon,  he  ought  so  to  have  averred  on  his  return,  and  this,  not 
merely  as  a  matter  of  form,  but  as  matter  of  substance,  that  the 
prisoner  might  have  taken  issue  upon  it. 

To  seize  him  and  take  him  before  the  mayor,  &c.,  would 
require  a  very  brief  period  of  time;  yet,  consistently  with  the 
truth  of  the  return,  he  may  have  been  detained  for  days  after 
his  seizure  and  after  his  arrival  in  this  port.  If,  on  an  issue 
joined,  such  should  appear  to  be  the  fact,  any  court  or  jury 
might  —  nay,  would  be  bound  in  common  fairness  to  declare, 
that  he  had  not  been  held  for  any  such  purpose. 


NEW  YORK,  OCTOBER,  1846.  79 

In  the  matter  of  George  Kirk. 

In  case  involving  personal  liberty,  T^ere  the  fact  is  left  in 
such  obscurity  that  it  can  be  helped  out  only  by  intendments, 
the  well  established  rule  of  law  requires  that  intendment  shall 
be  in  favor  of  the  prisoner. 

We  have  not  in  the  return  any  thing  to  warrant  the  idea 
that  the  respondent  was  holding  the  slave  for  the  purpose  of 
taking  him  before  the  mayor,  under  the  statute,  except  the 
facts  that  he  was  a  slave,  that  he  had  concealed  himself  on 
board  the  vessel  and  was  there  held  in  durance. 

And  those  facts  would  just  as  well  warrant  the  idea  that  he 
held  him  as  the  agent  of  the  owner,  under  the  laws  of  the 
United  States,  or  held  him  for  the  purpose  of  selling  him  into 
bondage  elsewhere. 

This  claim,  resting  as  it  does  on  a  doubtful  statute,  and 
unsupported  by  the  facts,  must  also  fall  to  the  ground.  And 
the  respondent  is  left  before  us  to  be  regarded  as  one  having  no 
authority  in  the  matter,  but  as  preferring  a  claim  to  the  cus- 
tody of  this  boy,  simply  because  he  has  admitted  himself  to 
have  been  a  slave. 

To  allow  the  claim  in  this  case,  would  justify  his  being 
surrendered  to  any  other  stranger  who  might  demand  him,  in 
order  to  transport  him  into  closer  and  more  enduring  bondage, 
or  to  conceal  him  beyond  the  reach  of  his  lawful  master. 

The  court  then  instructed  the  clerk  to  enter  an  order  on  the 
minutes,  directing  the  slave  to  be  discharged. 

On  the  same  day,  Mr.  Jay  presented  a  petition  to  the 
circuit  judge,  setting  forth  that  after  the  discharge  of  the  slave 
by  the  oyer  and  terminer,  he  had  been  seized  by  the  authority 
of  the  master  of  the  vessel  and  taken  before  the  mayor,  for  the 
purpose  of  obtaining  the  certificate  under  the  Rev.  Stat.  to 
warrant  his  reconveying  him  to  Savannah  —  and  praying  the 
allowance  of  a  writ  of  habeas  corpus,  directed  to  the  mayor, 
who  held  him  in  custody,  for  the  purpose  of  inquiring  into  the 
propriety  of  granting  a  certificate. 

To  this  second  writ  the  following  return  was  made 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  George  Kirk. 


To  the  Honorable  JOHN  W.  EDMCNTDS,  Circuit  Judge  for  the  first 

judicial  circuit  of  the  state  of  New-  York  : 

The  return  of  Andrew  H.  Mickle,  mayor  of  the  city  of  New- 
York,  to  the  writ  of  habeas  corpus  directed  to  him,  and  allowed 
by  the  circuit  judge  above  named,  on  the  twenty-seventh  day 
of  October,  A.  D.  1846,  to  inquire  into  the  cause  of  the  deten- 
tion of  a  colored  boy  named  George  Kirk  —  shows  : 

That  on  the  same  twenty-seventh  day  of  October,  A.  D. 
1846,  the  application  in  writing,  whereof  a  true  copy  is  here- 
unto annexed,  was  made  to  the  said  Andrew  H.  Mickle  as 
mayor  of  the  said  city  of  New-York,  by  Theodore  Buckley,  in 
said  application  mentioned,  setting  forth  that  he,  the  said 
Buckley,  was  master  of  the  brig  "  Mobile,"  an  American  ves- 
sel, belonging  to  the  port  of  New-  York.  That  on  the  thir- 
teenth day  of  October  instant  the  said  vessel  sailed  from  the 
port  of  Savannah,  in  Georgia,  bound  for  the  port  of  New- 
Yoik.  That  on  the  fifteenth  day  of  October  instant,  in 
latitude  34  deg.  10  m.,  N.,  and  longitude  75  deg.,  W.,  the  said 
Buckley  discovered  a  colored  man  secreted  in  the  foresteerage 
of  said  brig  covered  with  a  sail.  That  upon  examination  of 
said  negro,  he  admitted  that  he  was  the  slave  of  Charles 
Chapman,  of  Bryan  county  in  the  state  of  Georgia,  and  that 
he  had  »ecreted  himself  on  board  of  the  said  brig  while  lying 
at  the  port  of  Savannah,  in  said  state  of  Georgia,  with  a  view 
to  escape  from  the  service  to  which  he  was  lawfully  held 
under  the  laws  of  said  state. 

The  said  application  farther  set  forth,  that  the  said  Buckley 
arrived  ?t  the  wharf  in  the  port  of  New-York,  with  said 
colored  man  on  board,  on  the  22d  day  of  October  instant,  and 
that  said  colored  man  was  taken  on  that  day  from  the  custody 
of  said  Buckley  by  a  writ  of  habeas  corpus,  and  at  the  time  of 
presenting  such  application  was  in  the  city  prison. 

The  said  application  farther  set  forth,  that  said  colored  man 
did  secrete  himself  on  board  of  said  brig  Mobile,  while  lying 
at  the  port  of  Savannah  aforesaid,  without  the  knowledge  or 
consent  of  the  said  Buckley,  the  master  and  commander  of  such 
brig,  and  that  by  so  doing  he  subjected  the  said  Buckley  to  the 


NEW  YORK,  OCTOBER,   1846.  gj 

In  the  matter  of  George  Kirk. 

penalties  of  fine  and  imprisonment  under  the  laws  of  Georgia; 
wherefore  the  said  Buckley  prayed  that  a  certificate  might  be 
furnished  to  the  said  Buckley,  to  carry  or  send  such  colored 
person  to  the  port  of  Savannah  aforesaid. 

That  the  said  Buckley  duly  verified,  by  his  oath  before  the 
said  mayor,  the  said  application. 

That  in  the  afternoon  of  the  same  twenty-seventh  day  of 
October,  A.  D.  1846,  the  said  colored  boy  named  George  Kirk, 
was  brought  before  the  said  mayor,  at  his  office  in  the  city  hall 
of  the  city  of  New-York,  by  the  said  Buckley  and  persons  by 
him  authorized  to  aid  and  assist  him  as  his  agents  in  that 
behalf.  That  there  appeared  before  the  said  mayor,  at  the 
said  time  and  place,  Nathaniel  B.  Blunt,  esquire,  counsel  for 
the  said  Buckley,  and  John  Jay,  esquire,  counsel  for  the  said 
colored  boy.  That  thereupon  the  said  mayor,  at  the  request 
of  the  said  Buckley,  and  in  discharge  of  the  duty  imposed 
upon  him  in  that  behalf  by  the  laws  of  the  state  of  New-York, 
was  about  to  proceed,  in  conformity  with  the  law,  to  inquire 
into  the  circumstances  stated  in  the  application  aforesaid,  for 
the  purpose  of  determining  judicially  under  the  law  whether 
the  certificate  applied  for  should  be  given  as  authorized  by  the 
law,  when  it  was  agreed  by  and  between  the  parties  to  the 
said  proceeding  and  their  counsel,  that  the  inquiry  should  be 
postponed  until  the  hour  of  six  o'clock  in  the  afternoon  of  the 
same  twenty-seventh  day  of  October,  A.  D.  1846,  and  that 
until  such  hour  the  said  colored  boy  should  remain  in  the 
charge  and  under  the  control  of  the  said  mayor  and  be  detained 
by  him.  That  this  latter  arrangement  was  assented  to  by  the 
parties  and  their  counsel. 

That  the  said  mayor  thereupon  took  the  charge  and  control 
of  the  person  of  the  said  colored  boy,  and  before  the  hour 
appointed  for  the  inquiry  aforesaid,  there  was  served  upon  the 
said  mayor  the  writ  of  habeas  corpus  hereunto  annexed,  and 
to  which  this  is  a  return. 

And  the  said  Andrew  H.  Mickle  insists,  that  by  reason  of 
the  facts  hereinbefore  stated,  it  is  his  duty,  under  the  law,  to 
make  the  inquiry  aforesaid,  in  the  exercise  of  an  authority 

VOL.  I.  11 


DECISIONS  L\  CRIMINAL  CASES. 


In  the  matter  of  George  Kirk. 


judicial  in  its  nature;  and  that,  lor  the  purpose  of  such  inquiry 
and  until  the  termination  thereof,  he  is  entitled  to  have  the 
said  colored  boy  before  him  and  subject  to  his  orders,  and  that 
the  said  boy  is  now  in  the  charge  and  under  the  control  of  said 
mayor. 

But  whether,  on  the  foregoing  facts,  the  said  colored  boy  is 
subject  to  any  order  of  the  circuit  judge,  by  whom  the  said 
annexed  writ  of  habeas  corpus  was  issued,  the  said  mayor 
submits  to  the  decision  of  the  said  judge. 

In  witness  whereof  the  said  mayor  hath  hereunto  subscribed 
his  name,  this  twenty-eighth  clay  of  October,  A.  D.  1846. 

A.  H.  MICKLE,  Mayor. 

State  of  New-York,  city  and  county  of  ^New-York,  ss. 

Theodore  Buckley  being  duly  sworn  deposeth  and  saith,that 
he  is  the  master  of  the  brig  Mobile,  an  American  vessel, 
belonging  to  the  port  of  New-York.  That  on  the  thirteenth 
day  of  October  instant  the  said  vessel  sailed  from  the  port  of 
Savannah,  state  of  Georgia,  bound  for  the  port  of  New-York; 
that  on  the  fifteenth  of  October  instant,  in  latitude  34  deg.  10 
m.,  N.,  and  longitude  75  deg.,  W.,  this  deponent  discovered  a 
colored  man  secreted  in  the  foresteerage  of  said  brig,  covered 
with  a  sail.  That  on  examination  of  the  said  negro,  he  admit- 
ted that  he  was  the  slave  of  Charles  Chapman,  of  Bryan 
county,  state  of  Georgia,  and  that  he  had  secreted  himself  on 
board  of  said  brig,  while  lying  at  the  port  of  Savannah,  in  said 
state  of  Georgia,  with  a  view  to  escape  from  the  service  to 
which  he  was  lawfully  held  under  the  laws  of  said  state. 

And  deponent  further  saith  that  he  arrived  at  the  wharf  in 
the  port  of  New-York  with  said  colored  man  on  board,  on  the 
22d  day  of  October  instant,  and  that  said  colored  man  was 
taken  on  that  day  from  the  custody  of  deponent  by  a  writ  of 
habeas  corpus,  and  is  now  in  the  city  prison. 

And  deponent  further  says,  that  said  colored  man  did  secrete 
himself  on  board  of  the  said  brig  Mobile,  while  lying  at  the 
port  of  Savannah,  in  the  said  state  of  Georgia,  without  the 
knowledge  or  consent  of  this  deponent,  the  master  and  com- 


XF.W  YORK,  OCTOBER,   1846.  33 

In  the  matter  of  George  Kirk. 

mander  of  the  said  vessel;  and  that  by  so  doing  he  subjected 
this  deponent,  under  the  laws  of  Georgia,  to  the  penalty  of  fine 
and  imprisonment;  wherefore  deponent  prays  that  the  certifi- 
cate may  be  furnished  to  this  deponent  to  carry  or  send  such 
colored  person  to  the  port  from  which  he  was  brought. 
And  further  says  not. 

(Signed)  THEODORE  BUCKLEY. 

Sworn  to  before  me,  this  27th  day  of  October,  1846. 
(Signed)  A.  H.  MICKLE,  Mayor. 

To  this  return  a  general  demurrer  was  interposed,  and  a 
joinder  in  demurrer. 

The  demurrer  was  argued  before  the  circuit  judge  by  Mr. 
Jay  and  Mr.  White  as  counsel  for  the  petitioner,  and  by  Mr. 
McKeon  (district  attorney),  on  the  same  side,  and  by  Mr.  Blunt 
as  counsel  for  the  master,  and  Mr.  J.  T.  Brady  as  counsel  for 
the  mayor. 

The  points  taken  were, 

1.  That  the  provision  of  the  Rev.  Stat.  under  which  the  pro- 
ceedings before  the  mayor  had  been  instituted,  had  been  re- 
pealed by  the  act  of  1840. 

2.  That,  if  not  repealed,  the  statute  was  void,  as  repugnant 
to  the  constitution  of  the  United  States,  which  conferred  the 
power  of  legislation  on  this  subject  exclusively  upon  congress. 

EDMONDS,  Circuit  Judge. — When  this  boy  was  before  me  on 
a  former  occasion,  no  principle  of  law  was  involved,  but  mainly 
a  question  of  fact,  arising  out  of  the  return.  On  the  present 
occasion  it  is  quite  otherwise.  The  question  now  presented  is, 
the  constitutionality  and  consequently  the  validity  of  a  statute 
of  our  state. 

It  is  not  from  any  choice  on  my  part,  that  I  am  called  upon 
to  consider  this  question.  If  my  wishes  had  been  consulted,  the 
case  would  have  remained  with  the  mayor,  until  he  had  decided 
it;  and  even  then,  1  should  have  been  much  better  pleased,  if 
the  review  of  his  decision  had  been  commilted  to  some  func- 
tionary whose  other  duties  would  have  allowed  him  more  lei- 


DECISIONS  IN  CRIMINAL  CASES'. 


In  the  matter  of  George  Kirk. 


sure  than  I  can  command  to  examine  it.  But  the  party  had  a 
right  to  bring  the  matter  at  once  before  me;  under  our  statute, 
I  was  bound  to  allow  the  writ  of  habeas  corpus,  even  if  I  had 
been  fully  convinced  of  the  legality  of  the  imprisonment;  and 
the  return  made  to  the  writ,  necessarily  raising  the  question  to 
which  I  have  alluded,  it  becomes  my  duty  to  consider  and  de- 
cide it  —  a  duty  from  which  I  am  not  at  liberty  to  shrink,  and 
which  I  hope  I  may  be  able  to  discharge,  without  partaking  of 
the  excitement  which  has  surrounded  the  question  from  the  be- 
ginning. 

It  is.  conceded  on  the  record  that  George  is  a  slave,  owing 
service  to  a  master  in  Georgia;  that  without  the  consent  of  his 
owner,  and  without  the  knowledge  of  the  officers  or  owners  of 
the  vessel,  he  concealed  himself  on  board  the  brig  Mobile,  in 
the  port  of  Savannah,  for  the  purpose  of  securing  a  passage  to 
New  York;  that  his  being  on  board  was  not  discovered  by  the 
officers  of  the  brig  until  they  had  been  at  sea  two  days  on  their 
return  voyage,  and  had  got  without  the  territory  of  Georgia; 
that  as  soon  as  he  was  discovered,  he  was  arrested  and  confined 
until  his  arrival  in  this  port,  and  that  on  his  arrival,  the  master 
of  the  vessel  took  him  before  the  mayor,  to  the  end  that  he 
might  obtain  from  the  mayor  a  certificate  which  shall  warrant 
him  in  returning  the  boy  to  the  port  of  Savannah;  that  the 
owner  of  the  slave  does  not  demand  him  under  the  constitution 
and  laws  of  the  United  States,  but  he  is  demanded  by  the 
claimant,  simply  by  virtue  of  his  station  as  master  of  the  vessel, 
and  by  virtue  of  a  provision  of  our  statutes. 

Such  are  the  facts  of  this  case.  The  law  applicable  to  it,  is 
to  be  found  in  §  15,  1  Rev.  Stat.  659,  which  enacts  that  when- 
ever any  person  of  color,  owing  labor  or  service  in  any  other 
part  of  the  U.  States,  shall  secrete  himself  on  board  of  a  vessel 
lying  in  any  port  or  harbor  of  such  state,  and  shall  be  brought 
into  this  state  in  such  vessel,  the  captain  or  commander  thereof 
may  seize  such  person  of  color  and  take  him  before  the  mayor 
or  recorder  of  the  city  of  New  York.  The  officer  before  whom 
such  person  shall  be  brought,  shall  inquire  into  the  circum- 
stances, and  if  it  appear,  upon  proper  testimony,  that  such  per- 


NEW  YORK,  OCTOBER,  1846.  §5 

In  the  matter  of  George  Kirk. 

son  of  color  owes  service  or  labor  in  any  other  state,  and  that 
he  did  secrete  himself  on  board  of  such  vessel  without  the 
knowledge  or  consent  of  the  captain  or  commander  thereof,  and 
tha't  by  so  doing  he  subjected  such  captain  to  any  penalty,  such 
officer  shall  furnish  a  certificate  thereof  to  such  captain  or  com- 
mander, which  shall  be  a  sufficient  warrant  to  him  to  carry  or 
send  such  person  of  color  to  the  port  or  place  from  which  he 
was  so  brought  as  aforesaid. 

It  must  constantly  be  borne  in  mind  that  the  question  before 
me  does  not  grow  out  of,  nor  is  it  in  any  way  connected  with 
an  attempt  on  the  part  of  the  owner  of  the  slave  to  enforce  his 
rights  under  the  constitution  of  the  United  States  and-the  law 
of  congress  of  1793,  but  arises  solely  out  of  a  state  statute, 
which  authorizes  another  person,  in  no  respect  connected  with 
the  owner  of  the  slave,  nor  acting  by  his  authority,  to  retrans- 
port  him  from  our  territory  to  the  place  where  he  had  been 
held  in  bondage,  and  where  again  he  may  be  returned  to 
bondage. 

In  other  words,  while  the  constitution  of  the  United  States 
gives  to  the  party  to  whom  the  service  or  the  labor  may  be  due, 
the  right  to  reclaim  h<s  servant,  and  the  law  of  congress  extends 
that  right  to  the  agent  or  attorney  of  such  party,  it  is  claimed 
that  the  state  legislature  has  a  right  to  interpose  and  extend  the 
right  to  a  third  person,  not  acting  for  or  by  authority  of  the 
owner,  but  merely  because  he  was  the  commander  of  a  vessel 
on  which  the  slave  may  have  concealed  himself,  and  because 
by  such  concealment,  the  commander  may  have  become  liable 
to  a  penalty. 

Such  is  the  authority  which  the  mayor  has  been  called  upon 
to  exercise,  and  which  it  is  insisted  has  not  been>  and  can  not 
be  conferred  upon  him  by  the  state  legislature. 

Two  objections  are  raised  to  this  claim  of  authority: 

1.  That  the  provision  of  the  revised  statutes  authorizing  the 
proceeding  has  been  virtually  repealed  by  an  act  of  our  legis- 
lature, passed  in  1840. 

2.  That  if  it  has  not  been  repealed,  it  is  repugnant  to  the  con- 
stitution of  the  United  States,  and  therefore  inoperative  and  void. 


gg  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

The  conclusion  to  which  I  have  arrived  on  this  point  renders 
an  examination  of  the  first  unnecessary. 

The  section  of  the  revised  statutes  under  consideration  is  part 
of  title  VII  of  chap.  20,  of  the  first  part,  which  is  entitled,  "Of 
the  importation  into  this  state  of  persons  held  in  slavery,  of 
their  exportation,  of  their  services,  and  prohibiting  their  sale;" 
and  is  a  revision  of  the  act  of  1817,  entitled  "  An  Act  relative 
to  slaves  and  servants." 

The  30th  section  of  the  act  of  1817,  which  contains  the  pro- 
vision which  has  been  incorporated  into  this  15th  section  of 
the  revised  statutes,  is  preceded  by  a  recital  that  "  whereas 
persons"  of  color  owing  service  or  labor  in  other  states,  some- 
times secrete  themselves  on  board  of  vessels  while  such  vessels 
are  lying  in  the  ports  or  harbors  of  other  states,  and  thereby 
subject  the  commanders  thereof  to  heavy  fines  and  penalties." 
And  it  is  worthy  of  observation,  that  the  act  of  1817  as  well  as 
this  title  of  the  revised  statutes,  aims  at  prohibiting  the  export- 
ation as  well  as  the  importation  of  slaves,  and  that  while  the  act 
of  1817  abolishes  slavery  after  the  4th  of  July,  1827,  the  revised 
statutes  declare  that  every  person  born  in  this  state  shall  be  free, 
and  every  person  brought  into  this  state  as  a  slave,  except  as 
authorized  by  this  title,  shall  be  free. 

It  may  well  be  questioned  whether,  as  this  slave  was  brought 
into  this  state  in  a  manner  not  authorized  by  the  revised  stat- 
utes, he  did  not  thereby,  under  our  law,  become  ipso  facto,  free, 
and  whether  this  proceeding  before  the  mayor  is  not,  therefore, 
in  effect,  a  proceeding  to  carry  a  free  citizen  into  bondage 
But  I  do  not  consider  that  point,  as  it  was  not  raised  before  me 
in  the  argument,  was  not  discussed,  and  is  not  necessary  to  the 
decision  of  the  question  before  me. 

The  broad  question  discussed,  and  which  I  am  called  upon  to 
decide  is,  whether  our  state  legislature  have  authority  to  pass 
this  law. 

The  point  has  never,  as  far  as  I  can  learn,  been  decided,  or 
even  agitated  in  our  state,  and  it  is  presented  to  me  not  only  as 
a  new  one,  but  in  the  imposing  form  of  requiring  from  me  a 
decision  that  a  law  of  our  state  is  repugnant  to  the  constitution 


NEW  YORK,  OCTOBER.  1840.  g? 

In  the  matter  of  George  Kirk. 

of  the  United  States,  and  therefore  void.  Fully  aware  of  the 
diffidence  with  which  courts  should  always  entertain  such  ques- 
tions, I  approach  this  with  all  the  caution  becoming  the  gravity 
of  the  case,  yet  with  a  lively  sense  of  what  is  due  to  personal 
liberty  and  the  fraternal  relations  existing  among  the  members 
of  the  Union. 

As  T  have  already  mentioned,  the  statute  under  consideration 
was  first  enacted  in  1817,  and  was  subsequently  re-enaeted  and 
went  into  effect  as  part  of  the  revised  statutes,  in  1830.  In 
1834,  the  supreme  court  of  this  state,  in  Jack  \.  Martin  ( 12 
Wend.  311),  held  that  the  law  of  congress,  in  regard  to  fugitive 
slaves,  was  supreme  and  paramount  from  necessity  j  that  so  far 
as  the  states  are  concerned,  the  power,  when  thus  exercised,  is 
exhausted,  and  though  the  states  might  have  desired  a  different 
legislation  on  the  subject,  they  can  not  amend,  qualify,  or  in 
any  manner  alter  it;  that  though  the  act  of  the  state  might  not 
be  in  direct  repugnance  to  the  legislation  of  congress,  it  does 
not  follow  that  it  is  not  in  legal  effect;  that  if  they  correspond 
in  every  respect,  then  the  latter  is  idle  and  inoperative;  if  they 
differ,  they  must,  in  the  nature  of  things,  oppose  each  other  so 
far  as  they  do  differ;  that  a  fair  interpretation  of  the  terms  in 
which  the  provision  of  the  constitution  is  expressed,  prohibits 
the  states  from  legislating  upon  the  question  involving  the 
owner's  right  to  this  species  of  labor;  and  that  while  the  law 
of  congress,  thus  passed,  exists,  the  power  of  the  states  is  sus- 
pended, and,  for  the  time,  is  as  inoperative  as  if  it  had  ne/er 
existed. 

The  case  of  Jack  v.  Martin,  was  carried  to  our  court  for  the 
correction  of  errors  and  the  judgment  of  the  supreme  court  was 
affirmed.  Though  the  reasons  given  for  the  decision  in  the 
court  of  last  resort,  as  reported  in  14  Wend.  507,  differ  from 
those  given  in  the  court  below,  the  positions  of  the  supreme 
court,  as  I  have  extracted  them,  were  in  no  respect  disturbed, 
but  have  ever  since  remained,  and  are  now  the  law  of  the  land, 
governing  the  courts  and  citizens  of  this  state. 

In  1842,  the  supreme  court  of  the  United  States,  in  Prigg  v. 
Pennsylvania  ( 16  Peters,  539),  had  the  same  question  before 


gg  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

them.  It  arose  out  of  various  statutes  which  that  state  as  well 
as  New  York  and  other  northern  states  had  from  time  to  time 
been  enacting  on  the  subject  of  slavery,  and  which  contained, 
among  other  things,  provisions  very  like  ours  in  regard  to 
slaves  who  had  absconded  from  other  states 

Story,  J.,  in  delivering  the  opinion  of  the  court,  declares 
that  the  law  of  congress  may  be  truly  said  to  cover  the  whole 
ground  of  the  constitution,  not  because  it  exhausts  the  remedies 
which  may  be  applied,  but  because  it  points  out  fully  all  the 
modes  of  attaining  the  object  which  congress  have  as  yet 
deemed  expedient  or  proper  to  meet  the  exigencies  of  the  con- 
stitution. And  he  adds: 

If  this  be  so,  then  it  would  seem  upon  just  principles  of  con- 
struction that  the  legislation  of  congress  must  supersede  all 
state  legislation  upon  the  same  subject,  and,  by  necessary  im- 
plication, prohibit  it.  For,  if  congress  have  a  constitutional 
power  to  regulate  a  particular  subject,  and  they  do  actually 
regulate  it  in  a  given  manner  and  in  a  certain  form,  it  can  not 
be  that  the  state  legislatures  have  a  right  to  interfere,  and,  as 
it  were  by  way  of  compliment  to  the  legislation  of  congress,  to 
prescribe  additional  regulations,  and  what  they  may  deem 
auxiliary  provisions  for  the  same  purpose.  In  such  a  case  the 
legislation  of  congress,  in  what  it  does  prescribe,  manifestly 
indicates  that  it  does  not  intend  that  there  shall  be  any  farther 
legislation  to  act  upon  the  subject  matter.  This  doctrine  was 
fully  recognized  by  the  court  in  Houston  v.  Moore  (5  Wheat.  1), 
where  it  was  expressly  held  that  where  congress  have  exercised 
a  power  over  a  particular  subject  given  them  by  the  consti- 
tution, it  is  not  competent  for  state  legislation  to  add  to  the 
provisions  of  congress  upon  that  subject. 

This  is  the  supreme  law  of  the  land,  which  I  am  bound  to 
obey,  and  is  applicable  to  the  case  before  me  in  this  aspect, 
that  while  congress,  in  the  exercise  of  its  constitutional  power 
over  fugitives  from  service,  has  given  the  right  to  retake  and 
reconvey  them  to  the  place  of  service,  to  the  party  to  whom  the 
service  is  due,  his  agent  or  attorney,  the  state  legislation  adds 
to  the  provision  of  congress  on  that  subject,  by  conferring  the 


NEW  YORK,  OCTOBER,   1846.  gg 

In  the  matter  of  George  Kirk. 

power  of  recapture  and  reconveyance  upon  the  commander  of 
a  vessel  on  board  of  which  the  fugitive  may  have  concealed 
himself. 

If  it  may  add,  may  it  not  diminish?  And  if  state  legislation 
once  begins,  where  is  it  to  end,  and  what  bounds  are  to  be  set 
to  it,  but  state  discretion?  Well,  indeed,  did  our  supreme  court 
repudiate  the  idea  that  the  framers  of  the  constitution  intended 
to  leave  the  regulation  of  this  subject  to  the  states,  when  the 
provision  itself  obviously  sprung  out  of  their  fears  of  partial 
and  unjust  legislation  by  the  states  in  respect  to  it. 

While  this  construction  of  the  constitution — though  recent  in 
its  promulgation,  yet  old  as  the  instrument  itself — was  conceded 
on  all  hands  during  the  argument  before  me,  it  was  contended 
that  our  statute  did  not  fall  within  its  destroying  influence, 
because  it  was  only  a  police  regulation,  and  therefore  legiti- 
mately within  the  scope  of  state  authority. 

In  16  Peters,  625,  Story,  J.,  qualifies  the  decision  of  the  su- 
preme court  of  the  United  States,  by  saying  that  they  were  not 
to  be  understood  in  any  manner  to  doubt  or  interfere  with  the 
police  power  belonging  to  the  states,  in  virtue  of  their  general 
sovereignty.  That  police  power  extends  over  all  subjects 
within  the  territorial  limits  of  the  states,  and  is  distinguishable 
from  the  right  and  duty  secured  by  the  provision  of  the  consti- 
tution under  consideration. 

It  becomes,  therefore,  material  to  inquire  what  is  the  police 
power  here  alluded  to,  and  does  our  statute  justly  and  properly 
fall  within  its  scope  ? 

In  16  Peters,  the  same  learned  judge  speaks  of  this  power  as 
conferring  full  jurisdiction  on  the  states  to  arrest  and  restrain 
runaway  slaves,  and  remove  them  from  their  borders  and  other- 
wise to  secure  themselves  against  their  depredations  and  evil 
example,  as  they  certainly  may  do  in  cases  of  idlers,  vaga- 
bonds and  paupers.  The  rights  of  the  owners  of  fugitive 
slaves  are  in  no  just  sense  interfered  with  or  regulated  by  such 
a  course;  and  in  many  cases  the  operations  of  this  police 
power,  although  designed  essentially  for  other  purposes,  for  the 
protection,  safety  and  peace  of  the  state,  may  essentially  pro- 

VOL.  I.  12 


90  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

mote  and  aid  the  interests  of  the  owners.  But  such  regulations 
can  never  be  permitted  to  interfere  with  or  obstruct  the  just 
rights  of  the  owner  to  reclaim  his  slave,  or  with  the  remedies 
prescribed  by  congress  to  aid  and  enforce  the  same. 

In  New-York  \.  Milne  (2  Peters,  139),  Mr.  Justice  Barbour, 
in  delivering  the  opinion  of  the  court,  applies  this  test  to  deter- 
mine the  nature  of  the  power:  Did  it  belong  to  the  state  before 
the  adoption  of  the  constitution  ?  has  it  been  taken  from  the 
states  and  given  to  congress?  or  does  it  fall  within  that 
immense  mass  of  legislation  which  embraces  every  thing  within 
the  territory  of  a  state  not  surrendered  to  the  general  govern- 
ment ?  And  the  power  then  under  consideration  was  held  to 
be  of  that  "mass,"  because  its  place  of  operation  was  within 
the  territory,  and  therefore  within  the  jurisdiction  of  the  state; 
because  the  person  on  whom  it  operates  was  found  within  the 
same  territory  and  jurisdiction ;  because  the  persons  for  whose 
benefit  it  \vas  passed  were  the  people  of  the  state;  because  the 
purpose  to  be  attained  was  to  secure  the  protection  of  that 
people,  and  because  the  means  used  were  just,  natural  and 
appropriate  to  those  ends. 

Complaint  was  made  during  the  argument,  that  this  police 
power  was  exceedingly  vague,  uncertain  and  undefinable,  and 
hence,  I  suppose,  an  inference  was  to  be  deduced  that  I  ought 
to  regard  the  claim  of  power  with  little  favor  at  least.  In  the 
very  nature  of  things  it  must  be  difficult,  in  few,  or  perhaps  in 
many  words,  to  define  the  power;  for  it  comprehends  an  im- 
mense mass  of  legislation,  inspection  laws,  quarantine  laws, 
health  laws,  internal  commerce,  roads,  ferries,  &c. 

Yet,  immense  as  is  this  mass,  and  various  as  are  the  interests 
embraced  in  .and  affected  by  it,  it  seems  to  me  that  the  rules 
laid  down  by  the  Supreme  Court  of  the  United  States,  as  I 
have  already  quoted  them,  and  the  tests  which  they  provide, 
are  plain  and  simple  and  easy  to  be  understood,  and  in  their 
application  to  this  case  entirely  decisive  and  satisfactory  in 
the  result  to  which  they  lead  us. 

To  apply,  first,  the  rules  given  us  in  the  case  of  Prigg,  in  16 
Peters : 


NEW  YORK,  OCTOBER,   1846. 


In  the  matter  of  George  Kirk. 


The  police  power  "  extends  over  all  subjects  within  the 
territorial  limits  of  the  state,"  yet  our  statute  does  not  confine 
its  operation  within  our  limits,  but  provides,  in  case  the  fugi- 
tive is  from  another  state,  for  the  return  of  the  fugitive  back  to 
the  place  whence  he  fled. 

We  "  may  remove  slaves  from  our  borders  to  secure  ourselves 
against  their  depredations."  To  transport  the  slave  to  Canada 
or  Connecticut  would  effect  this  purpose,  yet  that  is  not 
allowed  by  our  statute.  He  must  in  compliance  with  its  com- 
mand, be  returned  only  to  his  place  of  bondage. 

"  The  rights  of  the  owners  are  not  to  be  interfered  with  or 
regulated." 

Yet,  what  is  a  compulsory  return  of  the  slave,  with  or  with- 
out his  owner's  consent,  to  the  place  whence  he  fled,  but  an 
interference  with  or  regulation  of  the  master's  right  to  control 
his  movements  and  govern  his  person  ? 

The  state  regulation  is,  "  not  to  interfere  with  the  remedy 
prescribed  by  congress."  Congress  has  limited  the  power  of 
recaption  to  the  owner,  his  agent  or  attorney,  but  our  state  law 
has  removed  that  limitation.  Congress"  has  protected  the 
rights  of  the  owner,  by  securing  the  reclamation  to  him  and 
those  appointed  by  him,  yet  our  statute  gives  to  the  commander 
of  the  vessel  the  power  of  transporting  the  slave  beyond  even 
the  reach  of  the  owner. 

Such  is  the  result  of  the  rule  furnished  us  by  Judge  Story. 
The  application  of  Judge  B  arbour's  tests  will  be  found  equally 
satisfactory  and  conclusive. 

Is  the  power  exercised  in  this  statute  one  "  embracing  a 
matter  within  the  territory  of  the  state,  not  surrendered  to  the 
government,  and  which  can  be  most  advantageously  exercised 
by  the  state  ?"  It  can  not  be  most  advantageously  exercised  by 
this  state.  It  can  not,  indeed,  be  exercised  at  all  without  the 
consent  of  the  state  from  which  the  slave  fled.  Suppose  that 
any  slave  state  should  forbid  the  return  to  its  territory  of  a 
fugitive  slave,  could  our  law  commanding  his  return  be  en- 
forced ?  It  could  be  only  enforced  by  the  national  govern- 
ment. 


92  DECISIONS  IX  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

But  to  proceed  with  his  tests: 

We  are  to  look  at  the  place  of  its  operation  to  see  that  the 
statute  operates  within  the  territory  of  New  York;  yet  the  main 
object  of  this  statute  plainly  is,  not  the  removal  of  the  slave 
from  our  borders,  but  his  return  to  the  place  whence  he  fled, 
involving  of  necessity  the  operation  of  our  statute,  without  our 
territory  and  without  our  jurisdiction.  Could  it  be  more  so  if 
it  provided  that  every  vagrant  arrested  in  our  streets  should  be 
transported  to  and  abandoned  in  the  streets  of  Savannah? 

We  are  next  to  look  upon  the  person  on  whom  it  operates,  to 
see  that  he  is  within  the  same  territory  and  jurisdicton;  yet  this 
statute  must  of  necessity,  operate  both  on  the  slave  and  the  com- 
mander of  the  vessel  more  out  of  the  state  than  in  it.  We  are 
next  to  look  at  the  persons  for  whose  benefit  it  was  passed,  to 
see  that  they  are  the  people  of  our  state.  Yet  this  statute  does 
not  confine  the  power  of  recaption  to  the  commanders  of  vessels, 
being  citizens — it  confers  it  on  all  commanders,  reside  where 
they  may. 

We  are  next  to  turn  our  attention  to  the  purpose  to  be  at- 
tained, to  see  that  it  is  to  secure  that  very  protection  and  pro- 
vide for  that  very  welfare.  The  argument  is,  that  this  statute 
had  its  origin  in  the  desire  to  protect  our  citizens  from  the  evil 
example  of  having  slaves  among  us;  yet  that  very  statute  pro- 
hibits the  removal  of  slaves  from  our  territory  by  high  penal 
enactments;  and  surely  if  the  welfare  of  our  citizens  and  their 
security  from  the  evil  example  of  slavery  were  the  object  in 
view,  it  could  be  attained  as  well  and  far  more  easily  by  trans- 
porting the  slave  to  a  free  state,  which  it  prohibits,  than  to  a 
slave  state,  which  it  absolutely  commands* 

And  lastly  we  are  to  examine  the  means  by  which  these 
ends  are  to  be  attained,  so  that  they  bear  a  just,  natural  and 
appropriate  relation  to  those  ends.  There  is  no  special  plead- 
ing, no  refinement  of  reasoning,  that  can  disguise  from  a  com- 
mon understanding  the  fact  that  the  whole  object  of  the  statute 
was  to  allow  the  commander  of  the  vessel  to  protect  himself 
by  retaking  and  returning  the  fugitive;  and  the  means  used, 
namely,  the  examination  and  adjudication  by  the  mayor,  and 


NEW  YORK,  OCTOBER,     1846.  93 

In  the  matter  of  George  Kirk. 

his  certificate,  were  natural  and  appropriate  to  that  end,  and  to 
none  other.  If  any  other  end  had  been  in  view  —  if  the  pro- 
tection of  our  people  at  large  had  been  aimed  at  —  there  would 
have  been  something  compulsory  in  the  law,  something  obliga- 
tory on  the  captain  to  afford  us  the  desired  protection.  But 
every  thing  is  left  to  his  discretion.  If  he  pleases  he  may  re- 
take, and,  after  retaking,  if  he  pleases,  he  may  return  the 
slave  to  the  place  whence  he  fled.  If  the  captain  should  chance 
not  to  be  a  citizen  of  this  state,  it  would  be  difficult  to  discover 
how  it  could  benefit  this  state;  yet  under  no  circumstances 
would  it  be  difficult  to  see  how  it  could  benefit  the  owner  to 
have  his  fugitive  servant  placed  again  within  his  reach.  In 
every  aspect  in  which  I  view  this  statute,  I  can  not  help  regard- 
ing it  as  intended  and  calculated  to  aid  in  returning  a  fugitive 
slave  to  his  master:  and  it  seems  to  me  that  the  claimant  in 
this  case,  and  his  counsel,  have  so  understood  the  law,  and  have 
acted  accordingly.  Else  why  was  the  boy  confined  on  board 
the  vessel  after  her  arrival  here?  Why  does  the  captain  plead 
his  obligation  to  the  laws  of  Georgia,  when  those  laws  compel 
him  to  return  the  boy  to  his  owner?  Or  why,  when  George 
was  making  every  effort,  with  the  assistance  of  numerous  friends, 
to  escape  from  the  state,  did  the  captain  invoke  the  aid  of  the 
police  to  arrest  those  efforts;  and  why  does  he  now  press  this 
claim,  but  that  he  may  do  that  which  the  constitution  and  laws 
of  the  United  States  declare  shall  be  done  only  by  the  party  to 
whom  the  service  is  due,  or  his  agent  or  attorney?  I  do  not 
allude  to  these  considerations  for  the  purpose  of  even  implying 
a  censure  upon  the  commander  of  the  vessel  or  his  owners;  but 
solely  with  a  view  of  drawing  from  his  acts,  and  those  of  his 
very  respectable  counsel,  the  consolation  justly  flowing,  that  he 
and  they  do,  in  effect  and  from  necessity,  understand  our 
statute  precisely  as  I  do,  namely,  in  the  language  of  the  United 
States  supreme  court,  as  by  way  of  compliment  to  the  legisla- 
tion of  congress,  prescribing  additional  regulations,  and  what 
they  deem  auxiliary  provisions  for  the  same  purpose. 

It  must  have  occurred  to  all  who  have  given  this  subject 
much  consideration,  as  it  has  to  me,  to  observe  the  extreme 


94  DECISIONS  IX  CRIMINAL  CASES. 

In  the  matter  of  George  Kirk. 

watchfulness  with  which  this  provision  of  our  national -consti- 
tution has  been  regarded  by  our  courts.  It  is  not  worth  my 
while  to  pause  and  inquire  into  the  cause  or  the  propriety  ot 
this.  It  is  enough  to  know  that  whenever  any  state  legislation, 
attempting  to  intermeddle  with  the  question,  has  come  before 
our  highest  courts,  it  has  without  ceremony  been  swept  from 
the  statute  book.  Our  statute  regulating  and  controlling  the 
master's  right  of  reclamation,  and  allowing  to  the  alleged  slave 
the  benefit  of  the  writ  of  homine  replegiando,  fell  before  the 
decision  of  our  supreme  court  in  Jack's  case.  The  laws  of 
Pennsylvania,  running  through  a  period  from  1780  to  1826,  and 
containing  a  provision  like  that  now  under  my  review,  were 
overturned  by  the  supreme  court  of  the  United  States  in  Prigg's 
case;  and  I  only  discharge  my  duty  —  obey,  indeed,  merely  one 
of  its  plainest  and  most  simple  dictates — by  declaring  that 
the  rule  of  law  thus  laid  down  by  the  highest  judicial  tribunals 
in  the  country,  and  whose  decisions  I  am  bound  to  respect  and 
to  enforce,  is  applicable  to  the  statute  in  question,  and  being 
applicable  renders  the  statute  null  and  void,  and  the  arrest  and 
detention  of  Kirk  under  it  improper. 

It  will  be  observed  that  I  have  omitted  to  discuss  many  con- 
siderations which  were  pressed  upon  me  during  the  argument 
The  view  which  I  have  taken  of  the  case  rendered  their  dis- 
cussion unnecessary,  but  I  will  briefly  allude  to  one  topic,  be- 
cause, if  the  danger  apprehended  were  to  ensue,  it  would  be  the 
only  cause  of  regret  which  I  should  experience  growing  out  of 
this  case.  I  allude  to  the  penalty  which  it  is  averred  may  fall 
upon  the  captain  in  case  of  his  return  to  Georgia.  I  can  not 
persuade  myself  that  there  is  any  cause  for  the  fear. 

The  slave  was  concealed  on  board  his  vessel  without  his 
knowledge  or  consent.  He  was  not  discovered  until  the  limits 
of  Georgia  had  been  passed,  and  to  have  returned  then  to  Sa- 
vannah would  not  only  have  vitiated  the  captain's  insurance, 
but  have  rendered  him  liable  in  an  action  to  the  boy;  and  since 
his  arrival  in  this  port,  he  has  resorted  to  every  means  which 
our  law  allows  to  return  him  to  his  place  of  servitude. 
And  if  he  shall  be  finally  defeated  in  his  attempts,  it  will  not 


NEW  YORK,  AUGUST,   !&47. 


The  People  v.  Phillips. 


be  from  any  want  of  efforts  on  his  part,  but  from  a  determina- 
tion on  the  part  of  the  authorities  of  this  state,  to  avoid  state 
usurpation,  and  to  maintain  the  constitution  as  it  has  been 
interpreted  by  the  highest  tribunals  in  the  country.  It  can  not 
be,  that,*under  such  circumstances,  he  can  have  any  thing  to  fear 
from  the  penal  enactments  of  Georgia. 

If,  however,  contrary  to  all  just  calculation,  those  fears  should 
yet  be  realized,  our  regard  for  the  individual  may  not  warp  the 
law  from  its  uprightness,  though  it  may  well  excite  our  regrets 
that  its  integrity  can  not  be  maintained  without  the  infliction 
of  unmerited  suffering.  This  boy  must  at  all  events  be  dis- 
charged. The  law  allows  it  and  the  court  awards  it. 


SUPREME  COURT.     At  Chambers,   New  York,  August,  1847. 
Before  Edmonds,  Circuit  Judge. 

THE  PEOPLE    vs.  ELIZA   PHILLIPS. 

The  power  of  summarily  convicting  offenders  being  in  derogation  of  the  com- 
mon law.  must  be  strictly  confined  to  the  special  statute  from  which  its  force 
is  derived. 

The  restrictions  and  regulations  relative  to  these  convictions  established  by  the 
higher  courts  in  England  before  the  revolution,  were  declaratory  of  the 
common  law,  and  are  binding  in  this  state,  unless  they  have  since  been  re- 
pealed or  altered  by  statute. 

A.  record  mnst  be  made  up  in  every  such  case  as  a  prerequisite  to  commitment ; 
and  trespass  will  lie  against  a  magistrate  who  commits  without  having  so 
done.  The  reasons  of  its  necessity  are: — 

1.  For  protection  of  the  accused:  that  he  may  not  again  be  convicted  of 
the  same  offence. 

2.  For  protection  of  the  magistrate:  a  proper  record  being  conclusive  evi 
dence  in  his  favor,  in  cases  within  his  jurisdiction. 

3.  In  the  absence  of  an  appeal,  the  only  mode  by  which  the  accused  can 
obtain  a  review  of  the  sentence  is  by  habeas  corpus  or  certiorari  founded  on 
the  record. 

Greater  certainty  is  required  in  such  records  than  in  indictments,  because  they 
are  taken  as  true  against  the  accused;  and  nothing  will  be  presumed  in  favor 
of  the  commitment,  but  the  presumption  will  be  against  it. 


96  DECISIONS  IN  CRIMINAL  CASES. 

The  People  w.  Phillips. 

Although  there  is  no  jury  trial,  the  proceedings  must  be  according  to  the  course 

of  the  common  law  in  trials  by  jury. 

Thnre  must    he  first  an   information  or  charge,  and  the  defendant  must  be 
•ummoned  and  have  an  opportunity  to  make  his  defence. 

The  evidence  in  support  of  the  charge,  must  be  such  as  the  common  law 
approves,  unless  specially  directed  otherwise  by  statute.  , 

There  must  be  a  conviction,  judgment  and  execution,  all  according  to  the 
course  of  the  common  law. 
The  record  is  designed  to  show  the  regularity  of  the  proceedings,  and  that  the 

sentence  is  supported  by  legal  evidence;  therefore,  everything  necessary  to 

support  a  conviction  must  appear  upon  it.     It  must  set  forth: 

1.  The  particular  circumstances  constituting  the  offence,  to  show  that  the 
magistrate  has  conformed  to  the  law  and  has  not  exceeded  his  jurisdiction. 
A  mere  statement  of  the  offence  in  the  terms  of  the  statute  is  insufficient, 

2.  The  plea  of  the  defendant,  whether  confession  or  denial. 

3.  The  names  of  the  witnesses,  to  show  their  competency. 

4.  That  the  evidence  was  given  in  the  presence  of  the  accused  that  it  may 
appear  he  had  the  opportunity  of  cross-examination.  - 

5.  The  whole  evidence  both  for  prosecution  and  defence  so  far  as  applicable 
tj>the  charge,  to  show  that  every  material  allegation  was  sustained  by  proof. 

6.  An  adjudication  of  the  guilt  of  the  accused,  which  must  ba  exact  and 
precise,  judgment  for  too  little  being  as  kid  as  for  too  much.  (a) 

ON  the  31st  of  August,  1846,  Eliza  Phillips  presented  to  the 
circuit  judge  a  petition  for  a  writ  of  certiorari,  to  certify  the 
cause  of  her  detention  in  the  penitentiary  on  Black  well's  island. 

On  the  3d  September,  the  keeper  made  a  return  to  the  certi- 
orari, that  she  was  detained  in  his  custody  by  virtue  of  a 
commitment  by  one  of  the  police  magistrates  in  the  foil',  ving 
words  :  — 


One  of  the  special  justices  for  preserving  the  pe.    j  in 
the  city  of  New-York  : 

To  the  constables  and  policemen  of  the  said  city,  and  (  ;ry 
of  them,  and  to  the  keeper  of  the  penitentiary  of  the  cit  of 
New-  York. 

These  are  in  the  name  of  the  People  of  the  State  of  N  w- 
York,  to  command  you,  the  said  constables  and  policemen  to 
• 

(a)  Since  this  decision  a  more  general  form  of  record  has  been  authorize  by 
the  act  of  12  April,  1803  (Ses*.  Law  of  1803  p.  353). 


NEW  YORK,  AUGUST,  1847.  97 

The  People  ».  Phillips. 

cohvey  to  the  said  penitentiary  the  body  of  Eliza  Phillips,  who 
stands  charged  before  me  of  being  a  vagrant,  viz.  :  an  idle 
person,  having  no  home  or  means  of  living,  being  a  common 
prostitute,  having  no  lawful  employment  whereby  to  maintain 
herself,  and  whereof,  he convicted  on  competent  testi- 
mony. And  you  the  said  keeper,  are  hereby  commanded  to 
receive  into  your  custody,  in  the  said  penitentiary,  the  body  of 
the  said  Eliza  Phillips,  and  her  safely  keep  for  the  space  of 
sixty  days,  or  until  she  shall  be  thence  delivered  by  due  course 
of  law. 

Given  under  my  hand  and  seal,  this  4th  day  of  August,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-six. 

(Signed), 

Ji.  Nash,  on  behalf  of  the  prisoner,  controverted  the  return 
and  set  forth  the  record  of  conviction  in  the  following  words : 

Police  Office,  Halls  of  Justice. 
City  and  county? 
of  New-York,   $  s 

Be  it  remembered,  that  on  the  4th  day  of  August,  1846, 
Alexander  McDougal,  of  the  said  city  and  county,  did  bring 
before  me,  one  of  the  special  justices  for  preserving  the  peace 
in  the  city  and  county  of  New- York,  one  Eliza  Phillips,  and 
did  complain  unto  me,  and  give  me  to  be  informed,  that  on  this 
present  day,  at  the  said  city  and  county,  the  said  Eliza  Phillips 
was  a  common  prostitute,  who  had  no  lawful  employment 
whereby  to  maintain  herself,  and  was  a  vagrant  within  the 
intent  and  meaning  of  the  statute,  which  complaint  and 
information  being  heard  by  me  at  the  city  and  county  aforesaid, 
I,  the  said  justice,  on  the  day  and  year  aforesaid,  at  the  city 
and  county  aforesaid,  upon  the  oath  of  said  Alexander  McDou- 
gal, as  well  as  upon  the  examination  of  the  said  Eliza  Phillips, 
taken  before  the  undersigned  having  jurisdiction  in  the  matter, 
being  satisfied  that  the  said  charge  and  accusation  were  in  all 
respects  just  and  true,  and  that  the  said  Eliza  Phillips  was  a 
vagrant  within  the  description  of  the  statute  in  such  case  made 
and  provided,  did  therefore  convict  the  said  Eliza  Phillips  of 
'  VOL.  I.  13 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v,  Phillips. 


being  such  vagrant;  and  it  appearing  to  me  that  the  said  Eliza 

Phillips improper  person  to  be  sent  to  the  Alms  House, 

I,  the  undersigned,  thereupon  sentenced  her  to  the  penitentiary 
for  the  term  of  two  months. 

(Signed) 

J.  D.  Phillips,  Assistant  District  Attorney  demurred,  and  the 
prisoner  joined  in  demurrer. 

A.  Nash  claimed  that  the  record  was  void,  and  therefore  the 
prisoner  was  entitled  to  her  discharge. 

THE  CIRCUIT  JUDGE.  —  I  have  been  so  frequently  called  upon 
to  discharge  from  the  penitentiary  prisoners  committed  on  sum- 
mary convictions  for  vagrancy  on  the  ground  of  some  alleged 
defect  or  irregularity  in  the  proceedings  of  the  sitting  magis- 
trate, that  I  have  deemed  it  advisable  on  this  occasion  to  give 
the  subject  a  full  examination,  in  the  hope  that  the  matter 
being  thoroughly  understood,  the  corrective  for  the  evil  may 
once  for  all  be  applied. 

Our  Rev.  Stat.  (vol.  1.  p.  633),  declares  that  if  a  magistrate 
be  satisfied,  by  the  confession  of  the  offender  or  by  competent 
testimony,  that  the  accused  is  a  vagrant,  within  the  description 
of  the  statute,  he  shall  make  up  and  sign  a  record  of  conviction 
thereof  which  shall  be  filed  in  the  office  of  the  clerk  of  the 
county,  and  shall  by  warrant  under  his  hand,  commit  such 
vagrant,  &c. 

Under  this  law  and  one  subsequently  passed  (Laws  of  1833), 
somewhat  enlarging  the  description  of  the  offence  and  varying 
the  punishment,  the  magistrates  mainly  proceed  in  the  class  of 
cases  now  under  consideration. 

And  the  mode  of  proceeding  is  not  by  a  formal  trial  by  a 
jury,  but  is  by  a  summary  conviction,  which  is  described  to  be 
the  examination,  and  punishment  of  offences  in  a  summary  man- 
ner by  justices  of  the  peace  out  of  their  sessions  and  without 
the  intervention  of  a  jury  or  an  open  trial  (Paley  on  Convic- 
tions, 1). 


NEW  YORK,  AUGUST,   1847.  99 

The  People  v.  Phillips. 

The  power  thus  exercised  is  not  in  conformity  to,  but  is  in 
derogation  of  the  common  law,  is  derived  solely  from  the 
statutes,  and  all  the  proceedings  under  the  authority  so  created 
must  be  strictly  conformable  to  the  special  law  in  each  instance, 
from  which  all  their  force  is  derived  (Cole's  case,  Sir  W.  Jones, 
139,  170;  1  Showers,  14). 

The  earliest  statute  upon  which  a  summary  conviction  is  on 
record,  is,  that  of  33  Henry  VIII.  ch.  6.  This  was  in  1544. 
From  that  time  to  the  present,  statutes  have  been  enacted, 
extending  tht  jurisdiction  to  other  cases  and  regulating  its 
exercise.  So  great  has  been  this  extension,  that  in  England 
and  Wales,  the  number  of  summary  convictions  in  one  year 
(1842),  was  71,725. 

Immediately  after  the  creation  of  this  new  judicatory,  its 
dangers  became  manifest.  The  earliest  case  reported  (43  Eliz.) 
is  that  of  a  sheriff's  officer  going  to  execute  a  writ  against  a 
justice  of  the  peace  for  a  debt,  and  taking  with  him  a  hand- 
gun from  the  apprehension  of  a  rescue.  The  justice,  instead  of 
obeying  the  writ,  apprehended,  convicted  and  imprisoned  the 
officer  till  he  paid  a  fine  of  j£10  under  the  color  of  the  act  of 
parliament  against  carrying  daggs  or  short  guns. 

The  necessity  of  putting  under  some  restraint  a  power  so 
summary,  so  arbitrary,  so  materially  affecting  personal  liberty, 
and  so  liable  to  be  perverted  to  purposes  of  oppression  and 
wrong,  required  from  the  courts  great  watchfulness  and  care 
Hence  frequent  decisions  were  made  by  the  higher  courts  in 
regard  to  it,  and  a  system  of  regulations  and  restrictions  grew 
up  and  became  incorporated  into  the  common  law.  Those 
regulations  and  restrictions  were  a  part  of  the  common  law  at 
the  adoption  of  our  constitution,  which  made  the  common  law 
the  law  of  our  land,  and  when  by  our  statutes  we  adopted  this 
peculiar  mode  of  trial,  we  necessarily  subjected  it  to  the  princi- 
ples already  established  in  regard  to  it,  and  we  must  therefore, 
in  examining  the  question  before  us,  go  back  to  the  law  as  it 
existed  at  the  adoption  of  our  constitution,  and  be  governed  by 
the  rules  then  established,  unless  in  the  language  of  our  consti- 
tution, they  have  since  been  repealed  or  altered.  And  it  is  the 


100  DECISIONS  IX  CRIMINAL  CASES. 

The  People  ».  Phillips. 

more  important  that  those  rules  should  be  well  understood  and 
rigidly  enforced,  because  our  constitution  in  securing  to  us  the 
trial  by  jury,  secures  it  only  in  those  cases,  in  which  it  had 
been  heretofore  used  (Art.  vii.  sect.  2). 

The  British  statutes,  alive  to  the  dangers  of  this  extraordi- 
nary jurisdiction,  have,  and  principally  since  our  revolution, 
given  an  appeal  to  the  accused,  by  which  he  can  review  the 
judgment  which  may  deprive  him  of  his  property,  his  liberty 
and  his  character.  But  our  statute  provides  no  such  remedy: 
our  constitution  deprives  him  of  the  protection  of  a  trial  by 
jury,  and  he  has  no  other  protection  left  to  him  against  the 
arbitrary  exercise  or  wanton  abuse  of  this  extraordinary  power 
than  what  he  may  find  in  "  such  parts  of  the  common  law  and 
of  the  acts  of  the  legislature  of  the  colony  of  New-York,  as 
together  did  form  the  law  of  said  colony  on  the  19th  April,  w 
1795"  (Const.  Art.  vii.  sect.  13).  g  JjJ 

It  is  by  that  common  law  that  I  shall  examine  the  case  now  g*  -r\ 
before  me;  mindful,  throughout,  that  no  member  of  this  state  *  H| 
can  be  deprived  of  any  of  the  rights  or  privileges  secured  to  **  j3 
any  citizen  thereof,  unless  by  the  law  of  the  land  or  the  judg-  %*  35 
ment  of  his  peers  (Const.  Jirt.  vii.  sect.  1).     And  that  no  person   ^j? 
can  be  deprived  of  life,  liberty  or  property  without  due  process 
of  law  (Ibid.  sect.  7).     Among  the  rules  of  the  common  law, 
and  almost  the  only  one  of  them  that  has  been  incorporated 
into  our  statute,  was  that  which  required  a  record  to  be  made 
of  every  summary  conviction  (12  Dalt.  c.  2,  §4;   1  Salk.  300; 
8  Co.  60,  38;  Boston  v.  Carew,  5  D.  fy  R.  558;  3  B.  8?  C.649; 
R.  v.  Eaton,  2  T.  R.  285;  R  v.  Black,  1  Sir.  147;  1  Rev.  St. 
633,  §  3). 

This  is  rendered  necessary  by  many  considerations. 

1.  For  the  protection  of  the  accused,  that  by  having  a  record, 
particularly  describing   the    offence,    he   may   be  saved  from 
being  a  second  time  convicted  on  the  same  charge  (Paley  on 
Con.  55;  Rex  v.  Midlam,  3  Burr.  1721). 

2.  For  the  protection  of  the  magistrate.   Where  he  has  juris- 
diction, a  proper  record,  though   made  out  by  himself,  is  a 
conclusive  defence  in  any  action  brought  against  him  by  reasop 


NEW  YORK,  AUGUST,   1847. 


The  People  v.  Phillips. 


of  his  action  in  the  premises  (Nixon  v.  Nanney,  1  G.  fy  D.  370; 
6  Jurist,  389;  Gray  v.  Cookson,  16  East,  13;  2  Cow.  Tr.  651; 
Mather  v.  Hood,  8  Johns.  R.  44;  Buquet  v  WW&f/is,  1  JlfiV.  La. 
£ep.  131;  Pa/ey,  332;  JW/er  v.  Patch,  Holt,  287;  Strickland 
v.  JFard,  7  T.  ^.  631;  Massey  v.  Johnson,  12  .&w£,  81). 

And  it  has  been  suggested  in  some  cases  whether  the  record 
is  not  a  protection  even  on  the  question  of  jurisdiction. 

3.  In  the  absence  of  all  provision  for  an  appeal,  the  record 
becomes  the  only  means  the   accused  has  of  reviewing  the 
judgment  against  him  and  of  ascertaining  whether  he  has  been 
justly  condemned.     A  certiorari,  a  remedy  still  left  to  him, 
carries  up  the  record  alone:  and  on  habeas  corpus  he  can  avail 
himself  only  of  objections  so  flagrant,  as  to  render  the  com- 
mitment absolutely  void,  not  voidable  only.     Without   a   re- 
cord  therefore    and    that   of   a   proper   character,    the    party 
would  be  deprived  of  all  means  of  inquiring  whether  he  had 
been  justly  condemned  and  be  also  deprived  of  an  effectual 
remedy  against  a  wanton  excess  of  the  jurisdiction.    He  would, 
it  is  true,  in  the  latter  case,  have  his  remedy  in  an  action  of 
trespass,  but  thai  would  not   come  until   he  had  suffered  the 
wrong,  and  while  his  conviction  would  be  exceedingly  prompt 
and  summary,  his  remedy  for  the  wrong  done  him  would  be 
very  slow  and  burdensome. 

4.  In  all  cases  of  special  and  limited  authority,  especially 
where  it  is  penal  in  its  character,  and  to  be  exercised  in  dero- 
gation of  the  common  law,  great  strictness  and  jealousy  ought 
to  be  exercised  not  only  in  construing  the  law,  but  in  canvass- 
ing the  proceedings.     Lord  Ch.  J.  Holt,  in  R.  v.  Whistler  (Holt, 
215),  with  great  propriety  remarks,  "  every  body  knows,  that 
this  being  a  penal  law,  ought  by  equity  and  reason  to  be  con- 
strued according  to  the  letter  and  no  further.     That  it  is  penal 
is   plain  and  what  is  highly  so,  the  defendant  is  put  to  a 
summary  trial  different  from  Magna  Charta,  for  it  is  a  funda- 
mental privilege  to  be  tried  by  a  jury.     Then  where  a  penalty 
is  inflicted,  and  a  different  manner  of  trial  from  Magna  Charta 
instituted,  and    the  party  offending,   instead  of  being  tried  by 
his  neighbors  in  a  court  of  justice,  shall  be  convicted  by  a 


102  DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Phillips. 


single  justice  in  a  private  chamber,  upon  the  testimony  of  one 
witness,  I  fain  would  know  if  on  the  consideration  of  such  a 
law  we  ought  not  to  adhere  to  the  letter."  Hawkins,  2  PL  C 
c.  25,  §13;  Lord  Kenyan,  in  R.  v.  Jules,  8  T.  R.  544;  Lord 
Mansfield  in  R.  v.  Little,  1  Burr.  613;  Jlshhurst,  J.  in  R.  v. 
Green,  Cald.  391,  and  Abbott ,  Ch.  J.,  in  R.  v.  Pain,  7  D.  &  R. 
all  maintain  the  doctrine  that  greater  certainty  is  required  in 
convictions  than  in  indictments,  because  the  defendant  has  no 
opportunity  of  pleading  to  these  summary  forms,  and  they  must 
be  taken  strictly,  because  they  must  be  taken  as  true  against 
the  defendant. 

5.  It  is  a  well  established  rule,  that  a  record  is  an  abso- 
lute prerequisite  to  a  commitment,  and  that  without  it,  not 
only  is  the  party  entitled  to  his  discharge,  but  the  magistrate 
is  liable  to  him  in  trespass.  In  one  case,  where  the  magistrate 
had  refused  to  give  a  record,  the  court  denounced  the  whole 
proceeding  as  "  one  of  the  many  cases  where  poachers  are  pur- 
sued with  unintermitting  vengeance.  Here  was  not  only  that, 
but  gross  oppression  also"  (3  Burr.  1722). 

The  necessity  and  object  of  a  record  being  thus  established, 
it  only  remains  to  inquire  what  that  record  must  contain. 

It  is  a  memorial  of  all  the  proceedings  that  have  taken  place 
op  to,  and  including  the  judgment  or  sentence  (Paley  on  Con. 
65). 

The  best  summary  of  the  law  on  this  subject  which  I  have 
found,  among  the  many  authorities  which  I  have  examined,  is 
in  1  Ward's  Justice,  705;  Tit.  Conviction,  in  these  words: 

The  power  of  a  justice  of  the  peace  is  in  restraint  of  the 
common  law,  and  in  abundance  of  instances,  is  a  tacit  repeal 
of  that  famous  clause  in  the  great  charter,  that  a  man  should 
be  tried  by  his  equals,  which  also  was  the  common  law  of  the 
land  long  before  the  great  charter,  even  for  time  immemorial, 
beyond  the  date  of  histories  and  records.  Therefore,  generally, 
nothing  shall  be  presumed  in  favor  of  the  office  of  a  justice  of 
the  peace:  but  the  intendment  will  be  against  it.  Therefore, 
•where  a  special  power  is  given  to  a  justice  of  the  peace  by 
act  of  parliament,  to  convict  an  offender  in  a  summary  manner, 


NEW  YORK,  AUGUST,  1847  103 

The  People  v.  Phillips. 

without  a  trial  by  jury,  it  must  appear  that  lie  hath  strictly 
puisued  that  power;  otherwise  the  common  law  will  break  in 
upon  him  and  level  all  his  proceedings.  Therefore,  where  a 
trial  by  jury  is  dispensed  withal,  yet  he  must  proceed  neverthe- 
less, according  to  the  course  of  the  common  law  in  trials  by 
juries,  and  consider  himself  only  as  constituted  in  the  place 
both  of  judge  and  jury.  Therefore  there  must  be  an  informa- 
tion or  charge  against  a  person;  then  he  must  be  summoned 
or  have  notice  of  such  charge,  and  have  an  opportunity  to 
make  his  defence;  and  the  evidence  against  him  must  be  such 
as  the  common  law  approves  of,  unless  the  statute  specially 
directcth  otherwise:  then  if  the  person  is  found  guilty,  there 
must  be  a  conviction,  judgment  and  execution,  all  according  to 
the  course  of  the  common  law,  directed  and  influenced  by  the 
special  authority  given  by  the  statute;  and  in  the  conclusion, 
there  must  be  a  record  of  the  whole  proceedings,  wherein  the 
justice  must  set  forth  the  particular  manner  and  circumstan- 
ces, so  as  if  he  shall  be  called  to  account  for  the  same  by  a 
superior  court,  it  may  appear  that  he  hath  conformed  to  the 
law,  and  not  exceeded  the  bounds  prescribed  to  his  jurisdiction 
(1  Burn,  364). 

A  conviction  must  contain  the  following  particulars  : 
An  information  or  charge  against  the  defendant — a  sum- 
mons or  notice  of  the  information,  in  order  that  he  may  appear 
and  make  his  defence  —  his  appearance  or  nonappearance  — 
his  confession  or  defence  —  the  evidence,  if  he  does  not 
confess  —  and  the  judgment  or  adjudication  All  these  matters 
must  be  particularly  set  out  on  the  conviction  (2  Robinson's 
Justice,  542  Brackett  v.  State,  2  Tyler,  167;  People  v.  Miller, 
14  Johns.  R.  371;  4  Johns.  R.  292). 

The  information  should  state  correctly  the  time  when  taken, 
the  place,  the  jurisdiction  before  which  taken,  and  the  charge 
preferred  ( 1  Ld.  Ray.  509 ;  2  Bl.  Com.  14 1 ;  Lacon  v.  Hooper, 
6  T.  R.  224).  So  that  it  may  appear  that  it  had  been  given 
within  the  time  limited  by  the  statute  —  that  the  power  was 
exercised  at  a  place  commensurate  with  the  jurisdiction,  before 
a  magistrate  having  jurisdiction  at  that  place  (2  Salk,  473), 


104  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Phillips. 

that  the  offence  was  directly  charged,  and  not  by  implication, 
and  contained,  in  express  terms,  every  ingredient  necessary  to 
constitute  the  crime  described  by  the  statute  (Rex.  v.  Bradley, 
10  Mod.  155;  R.  v.  Trelawney,  1  T.  R.  122;  2  Lord  Ray.  791; 
2  T.  R.  34). 

In  describing  the  offence,  a  mere  compliance  with  the  terms 
of  the  statute  will  not  suffice,  for  if  a  magistrate  merely  states 
the  facts  of  the  offence  in  the  words  of  the  act,  when  the  evi- 
dence does  not  warrant  the  conclusion,  he  subjects  himself  to  a 
criminal  information (R.v.  Thompson)  2  T.R.  18;  R.  v.  Pearce, 
9  East,  358;  R.  v.  Davis,  6  T.  R.  171;  Ardry  v.  Hoole,  Cowp. 
825). 

The  particular  circumstances  which  conduce  the  opinion  of 
the  magistrate  must  be  set  forth,  and  not  the  mere  result  or 
conclusion  from  them  (2  Rob.  Jus.  546). 

It  must  appear  that  the  accused  was  summoned  or  appeared 
before  the  magistrate  (Rex.  v.  Mlason,  2  Str.  678;  R.  v.  Ve- 
nables,  ib.  630),  and  if  he  neglects  to  appear  after  proof  of  being 
duly  summoned,  the  justice  may  proceed  to  judgment,  but  he 
must  state  all  these  facts  in  their  proper  order  in  the  conviction 
(R.  v.  Simpson,  1  Str.  44;  State  v.  Stokes,  1  Coxe,  392;  Bige- 
low  v.  Stearns,  19  /.  R.  41;  Son  v.  People,  12  Wend.  348; 
Chare  v.  Hathaway,  14  Mass.  R.  224J). 

The  plea  of  the  defendant  must  be  set  forth,  whether  of  denial 
or  confer  ion  (Paley  on  Conv.  Deacon's  ed.  139,  §  5). 

If  he  Denies  the  charge,  it  must  be  supported  by  evidence, 
and  the  '  ames  of  the  witnesses  must  be  set  out,  that  the  court 
may  p.<'/e  whether  they  are  competent  (Rex  v.  Tilly,  1  Str. 
16;  far  v.  Blaney,  Jlndr.  240). 

The  evidence  should  be  stated  to  have  been  given  in  the  pre- 
-*ence  of  the  accused  that  it  may  appear  he  had  an  opportunity 
of  cross-examination  (Rex  v.  Vipont,  2  Burr,  1163;  Rex  v. 
Crowcher,  I  T.  R.  125;  Rex  v.  Barwell,  6  T.  R.  75;  R.  v.  Lo- 
celf,  7  T.  £.152;  R.  v.  Swallow,  8  T.  R.  284;  R.  v.  Selway,  2 
Ch't.  522). 

TLf,  whole  evidence  which  applies  to  the  charge,  must  be 
purWiP.rly  set  out  in  the  conviction,  that  the  court  may  judge 


NEW  YORK,  AUGUST,  1847. 


The  People  v.  Phillips. 


whether  sufficient  proof  appears  on  the  face  of  it  to  sustain/ 
every  material  allegation  and  to  justify  the  adjudication  (RexJ 
v.  Killer,  4  Burr.  R.  2063;  R.  v.  Vipont,  2  Burr.  R.  1165;  2 
Rob.  Jus.  550,  per  Lord  Mansfield',  Rex.  v.  Lloyd,  2  Sir.  999, 
per  Lord  Hardwick;  R.  v.  Theed,  2  Str.  919,  per  Lord  Raymond; 
vide  also  2  Doug.  486;  Rex  v.  Smith,  8  T.  R.  588,  per  Lord 
Kenyan,;  Rex  v.  Warnford,  5  D.  fy  R.  489;  Rex  v.  Dove,  3  B.  fy 
Al.  596;  Rex  v.   Taylor,  2  Chitty  R.  578;  Commonwealth  v. 
Hardy,  1  Jlshmead  R.  411). 

It  will  not  be  sufficient  to  state  that  "  the  said  offence  was 
duly  and  fully  prove'd,"  for  that  is  to  state  the  result  of  the  evi- 
dence and  not  the  evidence  itself  (Rex  v.  Reed,  Doug,  490;  Rex 
v.  Lovet,  7  T.  R.  122). 

And  the  evidence  for  the  defendant,  as  well  as  that  for  the 
prosecution,  must  be  set  out  (2  Rob.  Jus.  561;  Rex  v.  Clarke, 
8  T.  R.  220). 

The  record  must  contain  an  adjudication  of  the  magistrate 
upon  the  evidence,  as  to  the  guilt  or  innocence  of  the  prisoner 
(Rex  v.  Harris,  7  T.  R.  238;  Mayor  v.  Mason,  4  Doll.  266). 

And  the  adjudication  on  every  point  to  which  it  refers,  must 
be  precise  and  exact,  a  judgment  for  too  little  being  as  bad  as 
a  judgment  for  too  much  (Rex  v.  Clarke,  Cowp.  610;  Morgan  v. 
Brown,  6  JV*.  #  M.  57;  4  M.  #  E.  515;  Rex  v.  Patchett,  5  East* 
339;  R.  v.  Hazell,  13  Ea^,  139;  Gumming'  's  Case,  3  Green/.  R. 
51;  Power  v.  Peop/e,  4  JoAws.  £.  292). 

That  the  design  of  the  conviction  is  not  merely  to  record  the 
fact  of  the  judgment,  but  to  show  that  the  proceedings  required 
by  justice  had  been  regularly  observed  and  the  sentence  legally 
supported  by  evidence,  is  everywhere  evinced  by  the  language 
and  sentiments  of  the  ablest  judges  from  the  time  of  Lord  Holt^ 
who  himself,  on  all  occasions,  regarded  the  obligation  of  record- 
ing the  whole  proceedings  as  a  necessary  counterpoise  against 
the  liability  to  error  or  misapplication,  to  which  a  private  and 
discretionary  tribunal  is  naturally  exposed  (Intro,  to  Paley  on 
Con.  xxxiii). 

Everything  requisite  to  support  a  conviction  should  appear 
on  the  conviction  itself  (6  T.  R.  538),  and  its  validity  must  be 

VOL.  I.  U 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  ».  Phillips. 


determined  by  what  appears  on  the  face  of  it,  not  by  reference 
to  matters  dehors  (3  T.  R.  338). 

It  will  have  been  seen  in  the  course  of  this  examination,  that 
the  same  principles  which  pervaded  the  English  courts  before 
the  revolution,  have  been  regarded  in  our  own  couits  since  that 
event.  And  it  has  frequently  occurred  to  our  courts,  in  view 
of  the  manifold  dangers  arising  from  the  exercise  of  so  summary 
and  arbitrary  a  jurisdiction,  that  it  was  the  more  necessary  for 
them  to  assert  and  maintain  the  principles  on  which  personal 
liberty  is  dependent. 

The  supreme  court  of  Massachusetts,  in'  Chase  v.  Hathaway, 
take  occasion  to  say,  it  is  a  fundamental  principle  of  justice 
essential  to  every  free  government,  that  every  citizen  shall  be 
maintained  in  the  enjoyment  of  his  liberty  and  property,  unless 
he  has  forfeited  them  by  the  standing  laws  of  the  community, 
and  has  had  opportunity  to  answer  such  charges  as  according 
to  those  laws  will  justify  a  forfeiture  or  suspension  of  them. 

In  the  State  v.  Savannah  (Charlt.  235),  the  courts  of  Georgia 
hold  this  language. 

In  this  country  no  person  can  be  injured,  in  his  personal  pro- 
perty, without  an  opportunity  of  defending  himself.  He  has 
the  right  of  being  confronted  with  his  accusers,  and  of  being 
apprised  of  the  accusation  against  him.  "jJudialteramparlem," 
is  a  maxim  of  natural  justice,  dear  to  the  human  heart,  and  as- 
sociated with  every  principle  of  our  jurisprudence.  A  con- 
viction, founded  upon  ex  parts  accusation,  is  the  most  terrible 
species  of  despotism  that  the  human  heart  can  conceive.  It  is 
not  only  a  violation  of  the  most  obvious  dictates  of  common  law, 
but  it  is  destitute  of  every  principle  by  which  the  social  com- 
pact is  supported. 

In  the  case  of  Rex\.  University  of  Cambridge,  all  the  judges 
agreed,  that  the  want  of  a  summons  was  an  incurable  error;  and 
on  this  point,  the  expression  of  Justice  Fortescue  are  so  im- 
pressive, that  I  can  not  avoid  inserting  them.  The  objection, 
says  the  judge,  for  want  of  notice,  can  never  be  got  over..  The 
laws  of  God  and  man  both  give  the  party  an  opportunity  of 
making  his  defence,  if  he  has  any. 


NEW  YORK,  AUGUST,  1847.  107 

The  People  v.  Phillips. 

In  Geter  y.  Commissioners  of  Tobacco  Inspection  ( 1  Bay's  Rep. 
357),  the  courts  of  South  Carolina  say: 

The  proceedings  must  be,  as  nearly  as  possible,  according  to 
the  course  of  trials  before  juries  at  common  law;  as  these  jus- 
tices or  commissioners  are,  on  these  occasions,  put  in  the  place 
both  of  judges  and  juries.  The  party  accused  must  be  sum- 
moned; there  must  be  a  specific  charge  against  him;  and  he 
must  have  time  and  opportunity  of  being  heard  in  his  defence. 
The  witnesses  against  him  must  all  be  on  oath,  agreeable  to  the 
rules  of  law,  and  reduced  to  writing,  or  at  least  so  much  as  is 
necessary  to  the  conviction.  And  in  cases  of  conviction,  there 
ought  to  be  record  of  it,  under  the  hands  and  seals  of  the  jus- 
tices or  commissioners,  in  which  so  much  of  the  testimony  must 
be  set  forth,  as  will  bring  the  offender  under  the  terms  of  the 
law,  and  evince  that  they  have  not  exceeded  the  powers  given 
them  by  the  law.  If  this  is  not  done  in  such  convictions,  the 
common  law  will  break  in  upon  them,  and  level  all  their  pro- 
ceedings. 

'These  principles  are  deeply  imbedded  in  the  system  of  laws 
in  our  state  also,  and  as  thousands  of  our  citizens  are  yearly 
subjected  to  the  operation  of  this  summary  and  dangerous  juris- 
diction, it  is  of  the  highest  importance  that  the  rules  which  have 
been  adopted  for  the  purpose  of  restraining  it,  within  due 
bounds,  should  be  strictly  and  carefully  preserved. 

Testing  the  record  in  this  case  by  these  rules,  it  can  not  foi 
a  moment  be  sustained. 

The  information  merely  states  the  offence  in  the  words  of  the 
statute:  it  is  not  stated  whether  the  accused  pleaded  to  the 
charge;  nor  whether  she  was  present  when  the  witness  was 
examined;  nor  is  any  part  of  the  evidence  set  forth,  and  the 
record  is  so  drawn  up,  that  while  two  males  and  one  female  are 
named  in  it,  it  is  the  female  who  is  convicted  of  being  a  va- 
grant and  one  of  the  males — which  one  does  not  appear — who 
is  thereupon  sentenced  to  the  penitentiary  for  two  months. 

The  record  being  void,  the  prisoner  must  be  discharged. 


103  DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     At  Chambers.     New  York,  March,   1847 
Before  Edmonds,  Justice. 

In  the  matter  of  NICHOLAS  LUCIEN  METZGER. 

A  treaty  containing  provisions  to  be  executed  in  futuro,  is  in  the  nature  of  a 

contract,  and  does  not  become  a  rule  for  the  courts  until  legislative  action 

shall  be  had  on  the  subject. 
The  treaty  with  France  of  1843,  providing  for  the  surrender  of  fugitives  from 

justice,  can  not  be  executed  by  the  President  of  the  United  States  without  an 

act  of  Congress,  (a) 
No  person  can  be  surrendered  under  that  treaty,  who  is  merely  charged  with 

crime  before  a  committing  magistrate.     He  must  under  our  law  be  indicted, 

or  under  the  French  law  be  mis  en  accusation  by  the  chambre  des  mises   en 

accusation. 

THE  prisoner  was  a  notary  public  in  one  of  the  departments 
of  France,  which  he  left  and  came  to  this  country.  After  he 
had  left  his  residence,  it  was  charged  against  him  that  he  was 
a  defaulter  to  his  clients  to  a  large  amount,  for  moneys  of  theirs 
which  he  had  embezzled,  which  embezzlement  he  had  at- 
tempted to  conceal  by  means  of  forgeries. 

Complaint  to  that  effect  was  made  against  him,  before  a 
French  committing  magistrate,  who  issued  a  warrant  for  his 
arrest.  He  was  not,  however,  apprehended  on  the  warrant,  but 
the  papers,  duly  authenticated,  were  transmitted  to  this  country, 
and  the  French  minister'to  this  country  demanded  his  surrender 
under  the  treaty  with  France  of  1843.  That  functionary  was 
referred  by  the  secretary  of  state  to  the  courts  or  magistrates 
of  the  country,  and  accordingly  made  application  to  one  of  the 
police  magistrates  of  New  York  for  a  warrant,  on  which  Metz- 
ger  was  arrested.  An  examination  was  had  before  that  officer, 
who  adjudicated  that  the  prisoner  was  within  the  treaty,  and 
issued  his  warrant  committing  him  to  prison  until  the  President 
of  the  United  States  should  demand  him. 

(a)  In  accordance  with  this  decision,  an  act  was  passed  by  Congress  on  12th 
August,  1848,  entitled  "an  act  for  giving  effect  to  certain  treaty  stipulations 
between  this  and  foreign  governments,  for  the  apprehension  and  delivering  up  of 
certain  offenders." 


NEW  YORK,  MARCH.   1847.  108 

In  the  matter  of  Metzger. 

Before  that  demand  was  made,  the  prisoner  was  taken  before 
the  circuit  judge  of  the  first  circuit  on  habeas  corpus.  That 
officer  decided  that  the  police  magistrate  had  no  jurisdiction  in 
the  matter,  and  the  prisoner  was  entitled  to  be  discharged  from 
that  commitment. 

The  French  diplomatic  agent  then  made  application  to  the 
United  States  district  judge,  before  whom  similar  proceedings 
were  had,  which' resulted  in  a  similar  adjudication  and  a  like 
warrant  of  commitment.  (6) 

Application  was  then  made  to  the  supreme  court  of  the 
United  States  for  a  writ  of  habeas  corpus  to  review  the  action  of 
the  district  judge.  The  application  was  denied  on  the  ground 
that  that  court  had  no  power  to  review  the  action  of  a  district 
judge  at  chambers. 

Thereupon  the  president  of  the  United  States  issued  his  man- 
date to  the  marshal  of  New  York,  commanding  him  to  surrender 
the  prisoner  to  the  diplomatic  agents  of  the  French  government. 
Before,  however,  the  surrender  was  actually  made,  a  writ  of 
habeas  corpus  issued,  directed  to  the  marshal,  returnable  before 
Edmonds,  circuit  judge. 

The  matter  was  twice  argued  before  him,  and  under  the  judi- 
ciary act  of  1847  was  transferred  from  him,  as  circuit  judge,  to 
him  as  judge  of  the  supreme  court  under  the  new  constitution. 

The  following  is  a  copy  of  the  petition  under  which  the  writ 
of  habeas  corpus  was  granted: 

To  John  W.  Edmonds,  circuit  judge  of  the  first  circuit  of  the 
supreme  court  of  judicature  of  the  people  of  the  state  of  New 
York: 

The  petition  of  P.  Barthelemy  shows,  that  Nicholas  Lucien 
Metzger  is  detained,  and  imprisoned  and  restrained  in  his 
liberty  by  the  marshal  of  the  district  court  of  the  United  States 
for  the  southern  district  of  the  state  of  New  York,  at  the  jail  of 
the  city  and  county  of  New  York,  and  that  he  is  not  committed 
or  detained  by  virtue  of  any  process  issued  by  any  court  of  the 
United  States,  or  by  any  judge  thereof,  in  any  case  where  any 

(6)  See  5  N   Y.  Legal  Obttrver,  83. 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Metzger. 


such  court  or  judge  has  or  had  exclusive  jurisdiction  under  the 
laws  of  the  United  States,  or  in  any  case  where  any  such  court 
or  judge,  has  or  had  acquired  exclusive  jurisdiction  by  the  com- 
mencement of  any  suit  in  any  court  of  the  United  States;  nor 
is  he  committed  or  detained  by  virtue  of  the  final  judgment  or 
decree  of  any  competent  tribunal  of  civil  or  criminal  juris- 
diction, or  by  virtue  of  any  execution  issued  upon  such  judg- 
ment or  decree  j  that  the  cause  or  pretence  of  such  detention 
and  imprisonment,  according  to  the  best  of  the  knowledge  and 
belief  of  your  petitioner,  is  a  warrant  of  commitment,  a  copy 
whereof  is  hereto  annexed,  marked  A,  issued  by  his  honor 
Samuel  Betts,  district  judge  of  the  district  court  of  the  United 
States,  for  the  southern  district  of  the  state  of  New  York,  under 
pretext  of  the  provisions  of  the  treaty  beween  the  United 
States  and  France,  called  the  treaty  of  extradition,  and  dated 
the  ninth  day  of  November,  A.  D.,  1843,  against  the  said 
Metzger  as  a  person  charged  with  some  one  or  more  of  the 
offences  named  in  the  provisions  of  said  treaty,  having  escaped 
from  the  jurisdiction  of  the  government  of  France,  which  im- 
prisonment, your  petitioner  submits,  is  illegal  for  want  of  juris- 
diction in  said  district  judge  over  the  person  of  said  Metzger, 
or  the  subject  matter  aforesaid,  wherefore  your  petitioner  prays 
that  a  writ  of  habeas  corpus  issue,  directed  to  said  marshal, 
commanding  him  to  bring  the  body  of  the  said  Nicholas  Lucien 
Metzger,  together  with  the  time  and  cause  of  such  imprison- 
ment and  detention,  by  whatsoever  name  the  said  Metzger 
shall  be  called  or  charged  before,  to  do  and  receive  what  then 
and  there  be  considered  concerning  said  Metzger. 
Dated  the  second  day  of  March,  1847. 

O.  Hoffman  and  JV.  B.  Blunt,  for  Metzger. 

Butler  (  U.  S.  District  Attorney'),  for  the  United  States 

Cutting  and  Tillou^  for  the  French  government. 

EDMONDS,  J.  —  This  case  involves  the  question  whether  th& 
president  of  the  United  States  has  authority,  by  virtue  of  mere 


XEW  YORK,  MARCH.  1847. 


In  the  matter  of  Metzger. 


treaty  stipulation,  and  without  an  express  enactment  of  the 
national  legislature,  to  deliver  up  to  a  foreign  power,  and  vir- 
tually to  banish  from  the  country,  an  inhabitant  of  one  of  the 
sovereign  states  of  our  confederacy. 

The  importance  of  the  question  has  weighed  heavily  upon 
me  during  the  whole  time  that  the  case  has  been  before  me. 

The  right  is  claimed,  and  has  been  exercised,  by  that  high 
functionary  in  this  instance;  its  exercise  is  demanded  by  the 
French  government  in  the  name  of  the  treaty  between  the  two 
nations,  and  a  branch  of  the  federal  judiciary  has  sanctioned  it. 

Amid  this  imposing  array  against  him,  the  prisoner,  a  resi- 
dent among  us  and  entitled  to  the  benefit  of  our  laws,  has 
thrown  himself  for  protection  upon  state  sovereignty  and  de- 
manded the  interposition  of  its  authority  between  him  and  the 
exercise  of  this  extraordinary  power.  To  that  protection  he 
has  a  right,  in  common  with  every  inhabitant  of  our  state,  and 
it  becomes  my  duty,  as  one  of  the  state  judiciary,  to  see  that  he 
sustains  no  injury  in  its  exercise. 

The  apprehension  that  out  of  the  discharge  of  this  duty  there 
might  spring  a  conflict  between  national  and  state  authority, 
has  not  been  without  its  influence  on  my  mind,  causing  me  to 
pause  long  and  weigh  well  any  decision  which  I  might  make. 
Presenting  to  my  mind,  as  this  case  does,  the  picture  of  the 
whole  authority  of  the  nation,  claiming  and  enforcing  the  sur- 
render of  the  individual  on  the  one  hand,  and  personal  liberty 
demanding  protection  against  the  exertion  of  extraordinary 
power  on  the  other.  I  have  not  been  free  from  anxiety  as  to  the 
conclusion  at  which  I  might  arrive  and  the  consequences  which 
might  flow  from  it. 

The  question  is,  in  a  great  measure,  under  our  institutions, 
anomalous,  arising  out  of  that  peculiar  provision  of  our  national 
constitution  which  declares  that  all  treaties  made  under  the 
authority  of  the  United  States  shall  be  the  supreme  law  of  the 
land.  But  for  this  provision,  and  the  construction  claimed  for 
it,  the  question  might  justly  be  regarded  as  already  settled  by 
authority.  The  British  government,  in  February,  1843,  made 
a  treaty  with  France,  identical  in  this  regard  with  the  con- 


112 


DECISIONS  L\  CRIMINAL  CASKS. 


In  the  matter  of  Metzger. 


vention  between  France  and  the  United  States.  The  British 
administration  and  the  British  parliament  did  not  deem  that  the 
convention  executed  itself,  or  that  it  could  be  exected  without 
legislative  enactment.  Hence  the  statute  6  and  7  Viet.,  c.  75, 
was  passed,  which  recited  this  clause  of  the  convention  and  de- 
clared that  it  was  expedient  that  provision  should  be  made  for 
carrying  it  into  effect,  and  then  enacted  that  any  justice  of  the 
peace,  or  other  person,  having  power  to  commit  for  trial  per- 
sons accused  of  crime,  &c.,  might  examine  witnesses  and  issue 
his  warrant  to  apprehend  the  alleged  fugitive  and  commit  him 
to  jail  until  delivered,  pursuant  to  the  requisition. 

Under  this  statute  the  lord  mayor  of  London,  in  September, 
1844,  issued  his  warrant  for  the  arrest  of  an  alleged  fugitive 
from  France,  who,  on  being  arrested,  was  brought  before  the 
Queen's  Bench  on  habeas  corpus.  That  court  held  the  warrant 
void,  and  on  being  applied  to,  for  the  purpose  of  remanding  the 
prisoner,  as  a  person  accused  under  the  treaty,  they  denied  that 
they  had  any  power  but  under  the  statute,  and  if  its  provisions 
were  not  clearly  complied  with,  they  had  no  power  at  all  in  the 
matter  (In  re  Besset,  1  New  Sessions  Cases,  337). 

Here,  then,  is  a  decision  that,  on  the  principles  of  common 
law,  the  treaty  does  not  execute  itself,  and  that  even  the  highest 
judiciary  in  the  nation  could  not  act  under  it  but  in  pursuance 
of  a  statute,  and  this  exposition  flows,  not  only  from  the  British 
courts,  but  from  the  British  executive  and  the  British  legisla- 
ture. 

I  know  of  nothing  except  the  provisions  of  the  constitution 
of  the  United  States  to  which  I  have  alluded,  which  can  exempt 
our  courts  from  the  binding  force  of  the  same  doctrine,  when 
they  and  the  English  courts  alike  draw  the  principles  of  their 
action  and  the  rule  and  guide  of  their  judgments  from  the  same 
fountain  of  the  common  law. 

Hence  arises  the  necessity,  in  this  case,  of  considering  the 
meaning  and  force  of  this  constitutional  provision  and  of 
inquiring  how  far  it  does  ex  proprio  vigore,  and  without  legis- 
.ative  sanction,  confer  upon  the  officers  of  the  national  govern- 


NEW  YORK,  MARCH,  1347. 


In  the  matter  of  Metzger. 


raent  the  power  of  executing  the  various  matters  to  which  it 
relates. 

In  the  first  place  it  must  be  observed  that  the  provision  in 
question  does  not  relate  to  treaties  alone.  It  is  the  constitution 
itself  and  the  laws  of  the  United  States,  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  which  shall  be 
the  supreme  law  of  the  land  (Const.  Art.  6). 

If  this  provision  has   this  self-acting   power  in  regard  to 
treaties,  it  has  it  equally  in  regard  to  the  constilution  at  large, 
and  from  this  consideration  we  may  well  appreciate  the  mag- 
litude  and  interest  of  the  question  involved 

What  is  the  meaning  of  the  supremacy  here  provided  for? 
That  the  power  is  itself  omnipotent  —  self-acting  and  self- 
dependent  alone  —  and  that  the  functionary  clothed  with  it,  if 
perchance  he  be  the  executive,  is  in  that  regard  beyond  the 
control  alike  of  the  judicial  and  legislative  departments  of  the 
government?  Such  must  be  the  result,  if  that  provision  does 
give,  as  is  claimed  in  the  argument  before  me,  to  the  constitution 
and  to  treaties  this  self-sufficing  authority. 

But  such,  as  I  understand  it,  is  not  the  true  reading  of  this 
provision.  The  22d  No.  of  the  Federalist  defines  its  purpose  in 
language  more  felicitous  than  any  which  I  can  use: 

"  The  treaties  of  the  United  States,  to  have  any  force  at  all. 
must  be  considered  as  part  of  the  law  of  the  land.  Their  true 
import,  as  far  as  respects  individuals  must,  like  all  other  laws, 
be  ascertained  by  judicial  determinations.  To  produce  uni- 
formity in  these  determinations,  they  ought  to  be  submitted,  in 
the  last  resort,  to  one  supreme  tribunal."  *  *  *  "If  there 
is  in  each  state  a  court  of  final  jurisdiction,  there  may  be  as 
many  different  final  determinations,  on  the  same  point,  as  there 
are  courts."  *  *  *  "To  avoid  the  confusion  which  would 
unavoidably  result  from  the  contradictory  decisions  of  a  number 
of  independent  judicatories,  all  nations  have  found  it  necessary 
to  establish  one  tribunal  paramount  to  the  rest,  possessing  a 
general  superintendence,  and  authorized  to  settle  and  declare 
in  the  last  resort  a  uniform  rule  of  civil  justice."  *  *  • 
VOL.  I.  15 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Metzger. 


"  The  treaties  of  the  United  States  under  the  present  consti- 
tution are  liable  to  the  infractions  of  thirteen  different  legisla- 
tures and  as  many  different  courts  of  final  jurisdiction." 

Hence  arose  the  establishment  of  a  supreme  judicatory,  not 
that  it  should  be  omnipontent  and  self-sufficing  in  its  power, 
but  that,  within  its  sphere,  it  should  be  paramount  to  all  other 
judicatories.  Hence,  too,  the  provision  in  question,  that  the 
constitution,  the  laws  made  in  pursuance  of  it,  and  the  treaties, 
should  be  the  supreme  law;  not  that  they  should  be  omnipotent 
and  self-sufficing  in  their  authority,  but  that  they  should  be 
paramount  over  all  other  authority,  so  that  if,  when  duly  exe- 
cuted, they  should  come  in  conflict  with  any  other  they  should 
be  supreme  and  paramount. 

This  is  no  novel  doctrine.  But  as  I  read  the  history  of  oui 
country,  it  has  prevailed  from  the  beginning,  though  not  now 
for  the  first  time  questioned. 

In  the  celebrated  case  of  Jonathan  Bobbins,  Chief  Justice 
Marshall,  then  a  member  of  the  House  of  Representatives,  as- 
serted the  same  claim  which  is  put  forth  for  the  government  in 
this  case.  But  he  went  farther  and  followed  the  doctrine  out  to 
its  legitimate  results,  by  insisting  that  the  case  was  one  for 
executive  and  not  judicial  decision,  and  that  the  judicial  power 
can  not  extend  to  political  compacts,  such  as  the  case  of  the 
delivery  of  a  murderer  under  the  27th  art.  of  Jay's  treaty  with 
Great  Britain  (5  Wheaton,  JJpp.  16). 

In  several  instances,  however,  and  at  different  periods,  Con- 
gress has,  by  its  action,  given  a  different  construction  to  this 
provision  of  the  constitution. 

A  few  instances  will  suffice: 

The  constitution  (art.  3,  §  2),  declares  that  the  judicial  power 
shall  extend,  among  other  things,  to  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls,  and  that  in  those 
cases  the  Supreme  Court  shall  have  original  jurisdiction.  It 
might  well  be  supposed,  that  if  any  power  in  that  instrument, 
which  is  to  be  the  supreme  law  of  the  land,  could  be  thus  self- 
acting,  it  would  be  the  power  thus  explicitly  conferred.  Yet 
in  the  judiciary  act  of  1789,  §  13,  congress  provide?  for  the 


NEW  YORK.  MARCH.   1847. 


In  the  matter  of  Metzger. 


exercise  of  this  jurisdiction,  both  for  and  against  ambassadors 
and  other  public  ministers. 

So,  too,  the  constitution,  art.  4,  §  2,  provides  that  fugitives 
from  justice  shall  on  demand  of  the  executive  of  the  state  from 
which  they  have  fled,  be  delivered  up  to  be  removed  to  the  state 
having  jurisdiction  of  the  crime. 

This  provision  also  of  the  supreme  law  of  the  land  might  be 
supposed  to  execute  itself,  yet  Congress,  in  1793,  passed  a  law 
upon  the  subject,  in  order  to  carry  it  into  effect. 

The  origin  of  this  law  is  a  striking  illustration  of  the  inter- 
pretation which  prevailed  at  those  early  days. 

It  grew  out  of  a  demand  made  by  the  governor  of  Pennsyl- 
vania upon  the  governor  of  Virginia  for  the  surrender  of  a 
fugitive  from  justice.  With  that  demand  the  executive  of 
Virginia  refused  to  comply,  for  one  reason,  among  others, 
because  congress  had  not  passed  any  statute  to  execute  this 
provision  of  the  supreme  law  of  the  land.  The  opinion  of  the 
attorney  general  of  Virginia  assuming  that  position,  and  the 
reply  of  the  executive  of  that  state,  sanctioning  it,  were  com- 
municated to  congress  by  President  Washington  in  October, 
1791,  and  out  of  that  state  of  things  flowed  the  statute  which 
has  for  more  than  half  a  century  governed  the  whole  action  of 
our  citizens  in  that  regard  American  State  Papers,  vol.  20 
p.  38). 

If  the  claim  now  asserted  is  well  founded  now,  it  was  so 
then,  and  if  well  founded,  then  indeed  were  this  statute,  and  that 
also  which  came  into  existence  at  the  same  time  in  regard  to 
fugitives  from  service,  works  of  idle  supererogation  on  the  part 
of  congress. 

So,  too,  the  same  article  of  the  constitution  provides  that 
persons  held  to  service  or  labor  in  one  state,  escaping  into 
another,  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due. 

This  provision,  too,  of  the  supreme  law,  so  far  from  execut- 
ing itself  by  virtue  of  its  supremacy,  is  helped  out  and  carried 
into  effect  by  the  same  law  of  congress,  and  sprung  from  the 
same  necessity  for  legislative  action  which  was  then  conceded. 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Metzger. 


So,  too,  the  article  of  the  constitution  (art.  2,  §  3),  which 
declares  it  to  be  the  duty  of  the  president  to  take  care  that  the 
laws  be  faithfully  executed,  is  helped  out  and  carried  into 
effect  by  the  act  of  1795,  which  gives  him  authority  to  call  out 
militia  to  suppress  insurrection  in  any  of  the  states. 

These  are  all  provisions  of  the  constitution  —  the  supreme 
law  of  the  land,  which  congress  has  at  an  early  day  deemed  it 
necessary  to  legislate  upon,  for  the  purpose  of  carrying  them 
into  effect. 

And  it  may  well  be  asked,  why  this  necessity,  if  this  supreme 
law  was,  by  virtue  of  its  supremacy,  self  sufficing,  and  did  exe- 
cute itself  without  legislative  interposition  ? 

Such  also  has  been  the  action  of  congress  and  the  interpreta- 
tion of  the  national  government  in  relation  to  our  treaties 
which  are  also  the  supreme  law. 

In  1788,  a  convention  was  entered  into  between  France  and 
the  United  States,  providing  for  the  arrest  and  surrender  of 
deserting  seamen,  in  which  it  is  provided  that  for  that  purpose 
the  consuls  shall  address  themselves  to  the  courts,  judges  and 
officers  competent,  and  demand  said  deserters  in  writing,  &c. 
And  all  aid  and  assistance  to  the  said  consuls  shall  be  given  for 
the  search,  arrest  and  seizure  of  said  deserters,  who  shall  be 
kept  ?nd  detained  in  the  prisons  of  the  country,  &c.  In  1824 
a  similar  treaty  was  made  with  the  republic  of  Columbia,  and 
from  that  time  down  to  1845,  various  treaties  with  nations  in 
Europe,  Asia  and  America  have  been  made,  containing  the 
same  provision  as  to  deserting  seamen. 

Specific  as  is  this  provision  in  these  various  treaties  —  point- 
ing out,  as  it  does,  even  the  manner  in  which  the  power  shall 
*be  exercised,  Congress  and  our  government  have  been  so  far 
from  regarding  it  as  capable  of  executing  itself,  that  in  1829  a 
law  was  passed  in  language  scarcely  more  particular  than  the 
various  treaties,  providing  for  carrying  them  into  effect.  This 
act  is  understood  to  owe  its  origin  to  the  fact  that  so  distin- 
guished a  jurist  as  Judge  Story  refused  to  execute  one  of  the 
treaties,  until  congress  had  legislated  upon  the  subject.  A 
marked  instance  of  a  similar  character  is  of  more  recent  occur- 


NEW  YORK,  MARCH,  1847. 


In  the  matter  of  Metzger. 


rence.  We  have  a  treaty  with  Spain  providing  against  pri- 
vateering, and  declaring  that  if  any  person  of  either  nation 
shall  take  a  commission  as  privateer  or  letters  of  marque,  he 
shall  be  punished  as  a  pirate.  Yet  congress  and  our  govern- 
ment did  not  regard  this  treaty,  though  the  supreme  law  of  the 
land,  and  distinctly  defining  the  offence  as  piracy,  and  thus 
bringing  it  clearly  within  the  jurisdiction  of  the  federal  courts, 
as  sufficient  to  execute  itself,  but  on  the  3d  of  March,  1847, 
passed  a  law  in  the  following  words  : 

AN  ACT  to  provide  for  the  punishment  of  piracy  in  certain  cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  Jlmerica  in  Congress  assembled,  that  any 
subject  or  citizen  of  any  foreign  state,  who  shall  be  found  and 
taken  on  the  sea,  making  war  upon  the  United  States,  or  cruis- 
ing against  the  vessels  and  property  thereof,  or  of  the  citizens 
of  the  same,  contrary  to  the  provisions  of  any  treaty  existing 
between  the  United  States  and  the  state  of  which  such  person 
is  a  citizen  or  subject,  when  by  such  treaty  such  acts  of  such 
persons  are  declared  to  be  piracy,  may  be  arraigned,  tried, 
convicted  and  punished  before  any  circuit  court  of  the  United 
States,  for  the  district  into  which  such  person  may  be  brought, 
or  shall  be  found,  in  the  same  manner  as  other  persons  charged 
with  piracy  may  be  arraigned,  tried,  convicted  and  punished  in 
said  court. 

Approved  March  3,  1847. 

So  far  as  the  Supreme  Court  of  the  United  States  have  acted 
on  this  question,  they  seem  to  have  adopted  the  same  principle.  . 
In  Foster  v.  Nelson  (2  Peters,  314),  they  declare  that  a  treaty 
is  in  its  nature  a  contract  between  two  nations,  not  a  legisla- 
tive act.  It  does  not  generally  effect  of  itself  the  object  to  be 
accomplished,  especially  so  far  as  its  operation  is  infraterrito- 
rial,  but  is  carried  into  execution  by  the  sovereign  power  of  the 
respective  parties  to  the  instrument.  In  the  United  States  a 
different  principle  is  established.  Our  constitution  declares  a 
treaty  to  be  the  law  of  the  land.  It  is  consequently  to  be 
regarded  in  courts  of  justice  as  equivalent  to  an  act  of  the  Je- 


U5  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Metzger. 

gislature  whenever  it  operates  of  itself  without  the  aid  of  any 
legislative  provisions. 

But  when  the  terms  of  the  stipulation  import  a  contract,  wrhen 
either  of  the  parties  engages  to  perform  a  particular  act,  the 
treaty  addresses  itself  to  the  political,  not  to  the  judicial 
department,  and  the  legislature  must  execute  the  contract 
before  it  can  become  a  rule  of  court.  And  speaking  of  the 
particular  treaty  then  under  consideration,  they  add,  "This 
seems  to  be  the  language  of  contract,  and  if  it  is,  the  ratifica- 
tion and  confirmation  which  are  promised,  must  be  the  act  of 
the  legislature.  Until  such  act  shall  be  passed,  the  court  is 
not  at  liberty  to  disregard  the  existing  laws  on  the  subject." 

In  the  U.  S.  v.  Jlrredondo  (6  Peters,  734),  that  Court 
affirm  the  same  doctrine  and  again  speak  of  a  treaty  which 
is  a  contract  between  two  nations,  the  stipulations  of  which 
must  be  executed  by  an  act  of  congress  before  it  can  become  a 
rule  for  their  decision. 

These  two  cases  involved  the  treaty  with  Spain  of  1819,  and 
they  grew  out  of  the  words  used  in  it,  that  certain  grants, 
"  shall  be  ratified  and  confirmed."  The  court  held  that  if  these 
words  imported  that  those  titles  "  are  hereby  ratified  and  con- 
firmed," then  the  treaty  by  virtue  of  its  being  the  supreme  law, 
operated  per  se  to  ratify  and  confirm,  but  if  they  imported  a 
contract,  that  they  should  at  some  future  period  be  ratified  and 
confirmed,  then  the  treaty  did  not  execute  itself,  but  it  must  be 
executed  by  an  act  of  congress  before  it  could  become  a  rule 
for  the  decision  of  the  courts.  In  other  words,  where  the 
treaty  is  a  contract  to  be  performed  infuturo,  the  English  rule, 
as  laid  down  by  Lord  Denman  in  1  New  Sess.  Ca.  is  applicable, 
the  courts  have  not  any  power  but  under  the  statute,  and  if  its 
provisions  are  not  clearly  complied  with,  they  have  no  power 
at  all  in  the  matter. 

The  Supreme  Court  of  the  United  States  a  third  time,  in 
reference  to  those  words,  reiterate  the  doctrine.  In  the  U.  S. 
v.  Pescheman  (7  Peters,  87),  Ch.  J.  Marshall  says,  that 
although  the  words  "  shall  be  ratified  and  confirmed"  are  pro- 
perly words  of  contract  stipulating  for  some  future  legislative 


NEW  YORK,  MARCH,  184/. 


In  the  matter  of  Metzger. 


act,  they  are  not  necessarily  so.  They  may  import  that  they 
shall  be  ratified  and  confirmed  by  force  of  the  instrument  itself. 

In  the  latter  signification  of  the  terms,  in  a  country  where 
the  treaty  is  the  supreme  law  of  the  land,  it  may  perchance  be 
well  said  that  the  treaty  executes  itself.  But  this  provision  in 
the  convention  with  France  under  which  this  prisoner  is  held, 
can  in  no  such  sense  be  held  to  execute  itself.  It  never  was 
intended  to  act  in  presenti.  It  was  a  contract  between  the  two 
nations  to  be  executed  only  in  faturo,  and  in  the  language  of 
principle,  of  the  action  of  congress  and  the  decisions  of  the 
federal  judiciary,  it  stipulated  for  future  legislation,  without 
which,  as  the  Queen's  Bench  declares,  the  courts  have  no 
power  at  all  in  the  matter. 

In  the  debate  in  congress  on  the  Jonathan  Robbins  matter, 
it  was  stated  that  President  Washington  had  entertained 
doubts  whether  the  extradition  clause  in  Jay's  treaty  could  be 
executed  without  legislative  action.  And  in  20  Sergt.  and 
Rawle,  135,  the  Supreme  Court  of  Pennsylvania  express  the 
same  doubt,  and  declare  that  the  opinion  of  the  executive 
hitherto  had  been  that  it  had  no  power  to  act. 

In  the  case  of  Prigg  v.  Commonwealth  of  Penn.  (  16  Peters, 
624),  the  provision  of  the  constitution  as  to  the  surrender  of 
fugitives  from  service  was  under  consideration.  Story,  J.,  in 
delivering  the  opinion  of  the  court,  speaking  of  that  clause 
which  enacts  that  the  fugitive  shall  be  delivered  up  on  claim 
of  the  party  to  whom  such  service  may  be  due,  says,  "  We 
think  it  exceedingly  difficult,  if  not  impracticable,  to  read  this 
language  and  not  to  feel  that  it  contemplated  some  farther 
remedial  redress  than  that  which  might  be  administered  at  the 
hands  of  the  owner  himself.  They  require  the  aid 

of  legislation  to  protect  the  right,  to  enforce  the  delivery  and 
to  secure  the  subsequent  possession  of  the  slave." 

And  the  court  in  that  case,  in  adjudicating  upon  language 
very  similar  to  that  contained  in  this  treaty,  declare  that  the 
constitution  does  execute  itself  so  far  as  to  establish  the  abso- 
lute right  of  the  owner  to  recapture  his  slave,  but  that  to 
enforce  the  right  the  aid  of  legislation  is  required.  And 


DECISIONS  IX  CRIMINAL  CASES. 


In  the  matter  of  Metzger. 


by  parity  of  reasoning  while  we  may  regard  this  treaty  as  exe- 
cuting itself  so  far  as  to  establish  the  right  of  the  French 
government  to  the  surrender,  legislation  is  required  to  enforce 
the  delivery  and  secure  the  subsequent  possession  of  the  fugi- 
tive. 

The  want  of  this  legislative  sanction  on  which  so  much 
stress  is  laid,  is  not  mere  matter  of  form.  It  is  a  substantial 
right  and  involves  too  deeply  the  liberty  of  the  citizen  to  be 
dispensed  with. 

Treaties  by  our  government  are  made  by  the  executive 
without  the  sanction  of  the  legislature.  The  extradition  pro- 
vided for  by  this  convention  with  France  is  not  confined  to  the 
subjects  of  France.  An  American  citizen  may  be  demanded 
by  the  French  government,  and  our  executive  may,  on  such 
demand,  banish  a  native  of  our  soil  —  nay,  if  one,  then  hun- 
dreds. And  it  becomes  us  well  to  see  that  power  so  great 
should  be  properly  guarded 

There  is  another  consideration  flowing  from  this  view  of  the 
case.  Neither  the  constitution,  the  laws  nor  the  treaty,  which 
together  constitute  the  supreme  law  as  to  this  case,  provide  for 
the  interposition  of  the  judiciary  in  the  exercise  of  this  power 
On  the  other  hand  the  treaty  provides  that  on  the  part  of  the 
United  States  the  surrender  shall  be  made  only  by  the  authority 
of  the  executive  thereof.  And  although  the  executive  has,  in 
this  case,  with  great  propriety,  invoked  the  aid  of  the  judici- 
ary, yet  he  has  done  it  in  such  a  manner  that  the  decision  of 
the  subordinate  tribunal  appealed  to  can  not  be  reviewed  in 
the  court  of  dernier  resort  and  therefore  becomes  final. 

And  if  the  right  claimed  in  this  case  for  the  executive  to 
act  in  the  matter  without  legislative  sanction,  be  once  firmly 
established,  I  can  not  discover  any  provision  in  the  supreme 
law  which  renders  it  necessary  for  him  to  seek  the  aid  of  the 
judiciary.  It  may  be  convenient  for  the  executive  to  resort  to 
the  machinery  of  the  judiciary  or  the  incumbent  for  the  time 
being  may  entertain  such  a  sense  of  duty  as  to  induce  such  a 
resort;  but  the  right  once  established  as  now  claimed,  it  must 
necessarily  become  a  matter  of  discretion  with  the  executive, 


NEW  YORK,  MARCH,    1847. 


In  the  matter  of  Metzger. 


whether  he  will  require  the  assent  of  either  the  legislative  or 
judicial  departments  to  his  surrendering  to  a  foreign  govern- 
ment any  person  native  to  the  soil,  or  immigrant,  whom  it  may 
please  to  demand  as  a  fugitive  from  justice. 

In  the  absence  of  any  statutory  provision,  the  executive  can 
resort  for  the  rule  of  its  action  only  to  the  treaty.  The  treaty 
with  France  nowhere  provides  for  a  resort  to  the  judiciary. 
Persons  accused  of  crime  shall  be  delivered  up,  provided  that 
this  shall  be  done  only  when  the  fact  of  the  commission  of  the 
crime  shall  be  so  established,  as  that  the  laws  of  the  country 
would  justify  their  apprehension  and  commitment  for  trial 
How  established,  and  before  what  tribunal?  It  is  the  execu- 
tive alone  who  can  surrender,  and  if  the  treaty  alone  is  to  be 
the  guide  of  his  action,  then  when  he  becomes  satisfied  that  the 
commission  of  the  alleged  crime  is  established,  whether  that 
be  with  or  without  the  aid  of  the  judiciary,  he  can  surrender. 

Such  is  the  claim  presented  before  me,  and,  if  established, 
then  is  the  liberty  of  the  citizen,  at  least  as  respects  extradi- 
tion, subject  to  the  executive  discretion  to  an  extent  that  is 
calculated  to  alarm  even  a  country  where  freedom  in  the 
aggregate  is  so  common  that  its  invasion  in  detail  is  too  often 
and  too  easily  disregarded. 

To  meet  an  objection  so  formidable  in  its  character,  it  is 
urged  that  the  aid  of  the  judiciary  must  of  necessity  be  invoked 
in  the  execution  of  the  treaty. 

I  have  alrea'dy  had  occasion  to  decide  in  this  case,  that  the 
state  magistrates  have  no  original  authority  in  the  matter. 
Not  having  seen  any  reason  for  changing  my  opinion,  and  that 
opinion  having  been  acquiesced  in  by  all  parties  concerned  in 
this  matter,  it  must  be  regarded  as  pro  tanto  the  law  of  this 
case.  The  remaining  question  then  is,  whether  any  of  the 
federal  magistrates  have  the  authority?  The  question  may 
well  be  put  still  broader,  and  comprehend  not  merely  the 
inquiry  whether  the  federal  judiciary  may  entertain  jurisdiction, 
but  also  whether  it  ought  not  to  be  the  duty  of  the  government, 
and  the  right  of  the  prisoner,  to  make  the  appeal  to  them.  I 
will  not  stop,  however,  here  to  consider  that  question,  but  pass 

VOL.  I.  16 


122  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Metzger. 

at  once  to  the  simple  topic  of  the  authority  of  the  fe^al  mag- 
istrates, voluntarily  or  otherwise,  to  act  in  the  matter.  And 
this  topic  need  not  be  discussed  any  further  than  to  the  extent 
and  as  to  the  manner  in  which  the  authority  has  been  exercised 
in  this  case. 

It  must  then  be  observed  in  the  outset,  that  the  action  on  which 
the  prisoner  was  committed,  was  not  the  action  of  any  court, 
but  of  a  district  judge  as  such.  The  arrest,  examination, 
and  commitment  were  none  of  them  the  act  of  the  district 
court,  but  of  the  judge  as  such  at  chambers,  or  as  committing 
magistrate.  It  is  important  to  keep  this  fact  in  mind,  as  it  is 
one  of  the  main  grounds  on  which  the  United  States  Supreme 
Court  refused  to  the  prisoner  his  application  for  the  writ  of 
habeas  corpus,  and  it  brings  us  to  the  real  question  in  this 
case,  whether  a  district  judge,  not  sitting  in  court,  has  the 
power  to  aid  in  carrying  a  treaty  into  effect. 

Marshall,  in  his  speech  in  the  Robbins  case,  repeatedly 
denied  the  authority  of  the  judiciary  in  every  form.  That  was 
the  second  proposition  he  maintained  (5  Wheat.  Jipp.  16): 
which  was  that  the  case  was  a  case  of  executive  and  not  judi- 
cial decision.  He  proceeded  to  refute  the  position  of  Mr.  Liv- 
ingston, that  the  judicial  power  of  the  United  States  expressly 
included  that  under  consideration.  He  maintained  (page  77), 
that  the  judicial  power  can  not  extend  to  political  compacts, 
as  the  establishment  of  a  boundary  line,  &c.,  or  the  case  of  the 
delivery  of  a  murderer,  under  the  27th  art.  of  ouf  present  treaty 
with  Britain,  and  he  proceeded  with  this  language  :  "  The 
gentleman  from  New-York  has  asked,  triumphantly  asked, 
what  power  exists  in  our  courts  to  deliver  up  an  individual  to 
a  foreign  government?  Permit  me,  said  Mr.  Marshall,  but 
not  triumphantly,  to  retort  the  question.  By  what  authority 
can  any  court  render  such  a  judgment?  What  power  does  a 
court  possess  to  seize  any  individual  and  determine  that  he 
shall  be  adjudged  by  a  foreign  tribunal?  Surely  our  courts 
possess  no  such  power.  Yet  they  must  possess  it,  if  this  arti- 
cle of  the  treaty  is  to  be  executed  by  the  courts.  And  he 
concluded  with  the  remark,  "  The  case  was  in  its  nature  a 


NEW  YORK,  MARCH,  1847.  J23 

In  the  matter  of  Metzger. 

national  demand  made  upon  the  nation.  The  parties  were  the 
two  nations.  They  can  not  come  into  court  to  litigate  their 
claims,  nor  can  a  court  decide  on  them.  Of  consequence,  the 
demand  is  not  a  case  for  judicial  cognizance." 

Again  (on  page  28),  he  says:  It  is  then  demonstrated  that 
according  to  the  practice  and  according  to  the  principles  of  the 
American  government,  the  question  whether  the  nation  has  or 
has  not  bound  itself  to  deliver  up  an  individual  charged  with 
having  committed  murder  or  forgery  within  the  jurisdiction  of 
Britain,  is  a  question  the  power  to  decide  which  rests  alone 
with  the  executive  department. 

The  inference  from  that  debate  and  its  results,  is  as  fair,  per- 
haps, as  any  other,  that  the  majority  of  congress  who  went 
with  him  on  that  occasion,  and  in  the  language  of  Judge  Story, 
"  put  the  question  at  rest  forever,"  intended  to  sustain  that  as 
well  as  other  principles  which  he  then  advanced. 

Mr.  Marshall  maintained  that,  a  treaty  providing  for  the 
surrender  of  fugitives  being  made,  the  executive  was  competent 
of  itself,  without  judicial  or  legislative  aid,  to  execute  it.  How 
far  he  is  competent  without  legislative  aid,  has  already  been 
shown  from  authority,  upon  principle  and  by  the  action  of  the 
government  for  fifty  years.  And  the  United  States  Supreme 
Court,  in  the  case  of  Holmes  v.  Jennison  ( 14  Peters),  and  more 
recently  on  the  application  of  Metzger  for  a  habeas  corpus, 
have  recognized  the  necessity  of  judicial  action. 

But  then  the  questions  recur,  whence  do  the  judiciary  derive 
their  authority  to  act  in  the  matter?  Who  is  to  set  them  in  mo- 
tion, and  what  is  to  regulate  and  control  the  form  and  manner 
of  their  going?  And  how  are  the  rights  of  the  accused  to  be 
protected? 

These  are  important  questions  under  our  state  constitution, 
which  declares  that  no  man  shall  be  deprived  of  any  of  the 
rights  or  privileges  secured  to  him,  unless  by  the  law  of  the 
land  or  the  judgment  of  his  peers. 

The  learned  judge,  upon  whose  warrant  the  prisoner  was 
committed,  evidently  has  strong  doubts  upon  this  subject,  though 
he  thinks  them  capable  of  a  satisfactory  solution.  But  the.  so- 


124  DECISIONS  IN  CK  iOXAL  CASES. 

In  the  matter  of  Metzger. 

lution  which  he  discovers  is  applicable  only  to  courts  of  the 
United  States,  not  to  the  judges  acting  out  of  court,  and  he 
seems  to  have  overlooked  the  distinction  which  the  Supreme 
Court  have  since  rendered  so  important,  as  on  that  ground  to 
deny  to  the  prisoner  the  privilege  of  having  his  case  reviewed 
in  the  federal  courts.  Under  that  decision,  I  am  not  at  liberty 
to  disregard  so  grave  a  distinction,  and  am  compelled  to  inquire, 
if,  perchance,  the  courts  have  the  power,  does  it  follow  that 
the  judges  out  of  court  possess  it  also?  If  so,  whence  does  it 
now?  Not  from  the  constitution,  for  that  is  silent  on  the  subject 

-not  from  the  treaty,  for  that  is  equally  silent — not  from  any 
express  statutory  enactment,  for  the  want  of  that  has  been 
throughout  the  whole  case  the  great  ground  of  complaint — 
and  not  from  necessary  implication  from  any  power  otherwise 
granted. 

It  seems  to  me,  then,  that  it  can  trace  its  origin  to  no  other 
source  than  the  necessity  or  convenience  of  the  case.  When  we 
are  brought  to  this  point,  then,  the  whole  course  of  reasoning 
on  which  was  founded  my  decision,  that  the  police  magistrate 
acted  without  authority,  becomes  equally  applicable  to  the  dis- 
trict judge.  In  the  absence  of  any  provision  of  the  constitution, 
of  the  treaty  or  of  the  statute,  conferring  the  power  upon  that 
officer,  I  am  compelled,  by  the  view  which  I  then  took  of  the 
case,  and  which  was  acquiesced  in  on  all  hands,  to  arrive  at  the 
same  conclusion  as  to  his  power. 

It  is  with  unfeigned  diffidence,  and  after  long  consideration, 
that  1  have  imbibed  a  view  of  this  case,  so  different  from  that 
entertained  by  the  learned  judge  whose  decision  I  am  compelled, 
from  my  position,  thus  to  review.  His  long  experience  and  the 
high  respect  which  I  entertain  for  his  judicial  character,  might 
have  inclined  me  to  yield  my  own  conviction  to  his,  if  his  own 
opinion  of  the  power  of  the  United  States  court  had  been  clear 
and  decided,  or  if  he  had  at  all  considered  the  power  of  a  judge 
out  of  court;  a  distinction,  I  repeat,  which  has  been  rendered 
important  by  the  subsequent  decision  of  the  Supreme  Court  of 
the  United  States. 

There  is  another  view  of  the  case  which  has  had  its  weight 


NEW  YORK,  MARCH,  1847.  135 

In  the  matter  of  Metzgrer. 

with  me,  and  that  is  the  mode  of  reviewing  the  decision  of  one 
of  the  federal  judiciary,  which  is  thus  brought  about.  Such 
review  is  not  ordinarily  through  the  state  tribunals,  yet  I  see 
no  way  in  which  it  can  be  avoided  in  this  case.  I  was  bound 
by  the  law  of  the  sovereignty  whose  minister  I  am,  under  severe 
penalties,  to  allow  the  writ  of  habeas  corpus.  It  was  to  the 
prisoner,  under  our  laws,  a  writ  of  right.  The  United  States 
Supreme  court  having  denied  to  him  the  privilege  of  carrying 
up  the  decision  of  the  district  judge  directly  for  their  review, 
he  had  a  right  to  resort  to  the  state  tribunals  as  the  conduit 
through  which  he  can  more  indirectly  pass  to  that  ultimate  tri- 
bunal, whose  peculiar  province  it  is  to  pass  upon  all  questions 
arising  under  treaties  made  by  the  authority  of  the  United 
States. 

The  writ  being  returned  before  me,  it  was  my  duty  to  inquire 
into  the  cause  of  his  detention,  and  that  not  merely  as  it  ap- 
peared on  the  warrant  by  which  he  was  held,  but  as  it  might 
appear  from  any  fact  alleged  before  me,  to  show  that  his  im- 
prisonment or  detention  was  unlawful,  or  that  he  was  entitled 
to  his  discharge  (2  Revised  Stat.  569,  §50).  I  have,  therefore, 
of  necessity,  gone  behind  the  mandate  of  the  president  and 
inquired  into  the  legality  of  the  foundation  on  which  it  rested. 
And  finding  it  to  be  wanting  in  the  legal  aliment  necessary  to 
support  it,  I  have  no  alternative  but  to  declare  that  the  prisoner 
can  not  lawfully  be  held  under  it. 

It  will  be  observed,  that  I  have  in  this  opinion  omitted  to 
discuss  many  of  the  points  raised  before  me  on  the  several  ar- 
guments, which  have  been  had  in  the  case.  This  omission  has 
not  arisen  from  any  want  on  my  part  of  attention  to  and  careful 
consideration  of  them,  but  solely  from  the  belief  that  their  con- 
sideration was  not  necessary  to  the  determination  of  the  case, 
on  which  I  was  to  render  my  judgment. 

There  is,  however,  one  topic,  on  which  I  differ  in  opinion 
with  the  learned  district  judge,  which  strikes  me  with  so  much 
force,  that  I  can  not  forbear  dwelling  a  moment  upon  it. 

The  Spanish  treaty,  which  has  been  already  alluded  to,  con- 
tained a  stipulation  as  to  the  ratification  and  confirmation  of 


126  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Metzger. 

certain  grants  of  land  therein  mentioned.  The  English  side  of 
the  treaty  contained  in  that  regard,  the  words  "  shall  be  ratified 
and  confirmed."  The  United  States  Supreme  Court,  in  con- 
struing those  words  in  Foster  v.  Neilson  (2  Peters,  253),  held 
that  they  imported  a  contract  to  be  performed  at  some  future 
time,  and  therefore,  as  has  been  already  mentioned,  required 
legislation  before  that  part  of  the  treaty  could  become  a  rule  for 
the  courts. 

That  treaty  again  came  before  the  court,  in  United  States  v. 
Percheman  (7  Pet.  87),  when  it  was  said  that  the  treaty  was 
drawn  up  in  the  Spanish  as  well  as  the  English  language. 
Both  were  originals  and  were  unquestionably  intended  by  the 
parties  to  be  identical.  The  Spanish  had  been  translated,  and 
they  then  understood  that  the  article  (of  the  treaty)  as  ex- 
pressed in  that  language,  was  that  the  grants  "  shall  remain 
ratified  and  confirmed,"  &c.  The  court  then  holds,  that  if  the 
English  and  Spanish  parts  can,  without  violence,  be  made  to 
agree,  that  construction  which  establishes  this  conformity  ought 
to  prevail.  No  violence  is  done  to  the  language  of  the  treaty 
by  a  construction  which  conforms  the  English  and  Spanish 
to  each  other  Although  the  words  "  shall  be  ratified  and 
confirmed,"  are  properly  words  of  contract,  stipulating  for 
some  future  legislative  act,  they  are  not  necessarily  so.  They 
import  that  they  shall  be  ratified  and  confirmed  by  force  of  the 
instrument  itself.  When  we  observe  that  in  the  counterpart  of 
the  same  treaty,  executed  at  the  same  time,  by  the  same  parties, 
they  are  used  in  this  sense,  we  think  the  construction  proper  if 
not  unavoidable. 

To  apply  that  principle  to  the  case  in  hand. 

The  convention  with  France,  under  consideration,  is  drawn 
up  in  the  French  as  well  as  the  English  language.  In  the  latter 
language,  when  the  party  to  be  surrendered  is  spoken  of,  he  is 
twice  spoken  of  as  the  person  "  charged"  and  twice  as  the  per 
son  "  accused."  In  the  French  counterpart,  the  expression  is 
uniformly  accuse:  "  les  individus  accuses"—  "  les  individus  qui 
accuses" — "  les  individus  qui  seront  accuses" — "  L'individu 
ainsi  accuse." 


XEVV  YORK,  MARCH,  1847.  137 

In  the  matter  of  Metzger. 

It  appears  from  the  opinion  of  the  learned  district  judge,  that 
it  was  claimed  before  him  that  this  French  phrase  was  equiva- 
lent to  the  term  in  our  law  indicted  or  arraigned,  and  that  it 
was  proved  before  him  that  such  is  the  understanding  of  the 
term  by  the  bar  and  the  courts  in  France:  inculpe  andprevenue, 
designate  persons  against  whom  criminal  charges  or  proceed- 
ings are  instituted  up  to  the  period  when  the  charges  are  acted 
upon  by  the  Chambre  des  mises  en  accusation,  and  an  accusation 
is  decreed  by  it,  and  then  and  not  before  they  become  accuses 
(Code  tfinst.  Crim.  Arts.  127,  128,  241.  265). 

The  same  question,  then,  arises  here  that  arose  under  the 
Spanish  treaty,  which  language  is  to  prevail  in  the  construction? 
If  the  English,  then  a  party,  merely  "  charged"  or  "  accused" 
before  the  committing  magistrate  may  be  demanded.  The 
prisoner  is  in  that  precise  situation.  He  has  been  charged  or 
accused  before  a  magistrate  authorized  to  arrest,  and  nothing 
more.  But  if  the  French  phrase  is  to  prevail,  then  the  prisoner 
does  not  come  within  the  treaty,  because  he  has  never  been 
indicted  or  arraigned,  never  been  mis  en  accusation. 

There  is  a  great  difference  in  the  French  practice,  as  well  as 
in  ours,  between  a  person  merely  charged  with  a  crime  and 
one  who  has  been  indicted;  between  inculpe  and  accusee.  There 
is  much  more  solemnity  in  the  latter  than  in  the  former,  more 
probability  of  guilt;  a  farther  progress  toward  conviction  has 
been  attained,  and  the  questions  both  as  to  the  guilt  of  the  pri- 
soner and  the  nature  of  the  offence,  no  longer  rest  merely  upon 
the  untried  and  uninvestigated  complaint  of  a  party,  but  have 
been  investigated  by  the  proper  tribunal,  the  grand  jury  or  the 
Chambre  des  mises  en  accusation,  and  probable  cause  for  the 
accusation  been  duly  found,  and  the  nature  of  the  offence 
charged  duly  defined. 

This  is  an  important  consideration,  for  it  is  not  every  offence 
with  which  a  person  may  be  charged,  for  which  he  can  be  sur- 
rendered. It  is  only  a  few  specified  cases,  and  it  often  becomes 
an  extremely  difficult  question  for  courts,  even  after  the  fact  is 
established,  to  ascertain  the  nature  of  the  offence  growing  out 
of  it 


128  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Metzger. 

In  this  case,  it  is  very  difficult,  if  not  quite  impracticable,  for 
an  American  lawyer  to  determine  whether  the  act  charged  upon 
the  prisoner  was  forgery  under  the  French  law.  If  the  matter 
had  passed  through  the  Chambre  des  mises  en  accusdtion,  and 
the  prisoner  had  been  mis  en  accusation,  had  become  accuse,  it 
would  have  been  judicially  determined  that  if  the  prisoner  had 
done  the  acts  imputed  to  him,  it  would  constitute  the  crime  of 
forgery,  but  now  the  complexion  of  the  act,  whether  forgery  or 
not,  rests,  in  a  great  measure,  if  not  solely,  on  the  charge  of  the 
complainant.  So,  too,  under  our  law,  it  is  often  difficult  to 
define  the  boundary  between  breach  of  trust  and  constructive 
larceny;  between  mere  fraud  and  the  felony  of  obtaining  money 
under  false  pretences.  And  when  we  come  to  the  exercise  of 
so  important  a  duty  as  the  surrender  of  a  native  or  naturalized 
citizen  to  the  demand  of  a  foreign  nation,  to  be  tried  in  a  fo- 
reign judicatory,  shall  it  depend  on  the  complexion  which  the 
anger  or  malice  of  the  complainant  may  give  to  the  case,  or 
shall  it  obtain  its  hue  from  the  investigation  which  the  grand 
jury  or  the  Chambre  de  Conseil  may  subject  it  to? 

These  inquiries  are  too  important  to  have  escaped  the  at- 
tention of  the  contracting  parties,  and  hence  we  find  a  phrase, 
having  a  definite  meaning  in  the  French  code,  entirely  incon 
sistent  with  the  idea  of  allowing  so  important  a  consideration 
as  extradition  to  rest  upon  the  color  which  the  complainant 
may  give  the  matter,  purposely,  repeatedly  and  carefully  used, 
in  a  manner  which,  under  our  law,  gives  it  controlling  influence 
over  both  parties  of  the  treaty.  So  that  a  person  demanded  of 
the  French  government  by  ours,  would  not  be  surrendered, 
unless  he  had  been  indicted  or  mis  en  accusation.  At  all  events, 
the  French  government  might  so  act  with  great  propriety,  and 
point  to  the  language  it  had  carefully  used  in  the  convention  as 
a  perfect  answer  to  the  demand. 

Entire  reciprocity  was  evidently  aimed  at  by  both  parties, 
and  I  can  not  conceive  a  reason  why  the  language  of  the  Su- 
preme Court,  in  regard  to  the  Spanish  treaty,  does  not  apply 
here  with  equal  force,  and  why  I  am  not  bound  to  hold,  as  the 
Supreme  Court  then  held,  that  if  the  English  and  French  parts 


NEW  YORK,  JULY,  1847.  129 

In  the  matter  of  Da  Costa. 

can  without  a  violence  be  made  to  agree,  that  construction 
which  establishes  this  conformity  ought  to  prevail,  and  that  no 
violence  will  be  done  to  the  language  of  the  treaty  by  a  con- 
struction which  conforms  the  English  and  French  to  each  other. 

If  this  construction  is  to  prevail,  then,  it  is  inevitable  thai 
the  prisoner  is  not  within  the  treaty,  and  can  not  be  demanded 
by  the  French  government,  nor  surrendered  by  the  American, 
but  is  entitled  to  the  protection  of  the  laws  of  this  state  against 
the  attempt  to  surrender  him. 

The  conclusion,  then,  at  which  I  have  arrived  is,  that  the 
prisoner  is  not  a  party  accused — mis  en  accusation — within 
the  meaning  of  the  treaty,  and  that  the  president  can  not  execute 
the  power  of  extradition  without  both  legislative  and  judicial 
sanction,  and  I  acknowledge  that  the  conclusion  commends  it- 
self to  my  favor,  because  of  the  protection  it,  is  calculated  to 
afford  to  personal  liberty  against  executive  authority. 

The  prisoner  must  therefore  be  discharged. 


SUPREME  COURT.     At  Chambers.     New  York  July,  1847.     Be- 
fore Edwards,  Justice 

In  the  matter  of  JOSE  DA  COSTA  and  JOSE  DA  ROCHA. 

The  adjudication  of  an  officer  having  power  to  issue  and  decide  upon  a  writ  of 
habeas  corpus,  may  be  set  up  as  res  adjudicate  upon  any  subsequent  writ  of 
habeas  corpus,  and  is  conclusive  upon  the  same  parties,  when  the  subject 
matter  is  the  same;  and  there  are  no  new  facts. 

The  parties  are  the  same,  where  the  writ  is  issued  on  behalf  of  the  same  person, 
against  the  same  respondent,  although  the  relators  are  different. 

The  material  facts  alleged  in  the  return,  which  are  not  denied  by  the  party 
brought  up  must  be  taken  to  be  true. 

The  circumstances  under  which  this   application  was  made, 
sufficiently  appear  in  the  opinion  of  the  court. 

John  Jay  and  J.  L.  White  for  the  slaves. 
VOL,  I.  17 


[30  DECISIONS. IN  CRIMINAL  CASES. 

In  the  matter  of  Da  Costa. 

1.  The  writ  of  habeas  corpus  is  a  substantial  right,  and  not 
the  mere  shadow  of  a  right.  It  is  a  writ  ex  debito  justice,  in- 
tended to  afford  an  easy,  prompt  and  efficient  remedy  for  all 
unlawful  imprisonment — a  writ  to  which  oil  persons  are  en- 
titled in  the  most  expeditious  and  ample  manner,  and  by  which 
personal  liberty  is  not  left  to  rest  for  its  security  upon  general 
and  abstract  declaration  of  right  —  nor  allowed  to  depend  upon 
the  arbitrary  discretion  of  any  one  man. 

It  is  a  writ,  for  the  denial  of  which  judges  are  made  person- 
ally responsible,  and  of  the  benefits  of  which  no  man  can  right- 
fully be  deprived  (2  Kent's. Com.  p.  26,  et  seq.  on  personal  lib- 
erty and  security;  1  Stephens  on  the  Eng.  Constitution,  p.  454, 
title  Habeas  Corpus  J)ct;  2  JV*.  F.  Rev.  Stat.  563,  et  seq.  and 
especially  §  44  [§  42] ,  stating  the  except  ed  cases  into  which  the 
court  can  not  inquire}. 

In  Great  Britain,  from  which  we  received  the  habeas  corpus 
act  without  alteration,  it  is  well  established  that  the  doctrine 
of  res  judicata  has  no  application;  but  that  a  party  restrained 
of  his  liberty  has  a  right  to  the  opinion  not  only  of  every  court, 
but  of  every  judge,  as  to  the  legality  of  the  imprisonment, 
and  that  each  court  and  judge,  when  applied  to,  are  bound  to 
consider  and  decide  the  case  upon  their  own  examination,  with- 
out being  concluded  by  previous  decisions  in  the  same  matter 
(Ex  parte  Partington  in  the  Court  of  Exchequer  ( 1845)/  13 
Meeson  fy  Welsby,  679,  per  Parfce.  B.  and  Pollock,  C.  B.  See 
the  same  case  reported  2  Dowling  4"  Lowndes'  Practice  Reports, 
650,  and  9  London  Jurist,  93). 

2.  It  has  never  been  determined  in  our  courts  that  the  doc- 
trine of  res  judicata  applies  to  decisions  in  writs  of  habeas  cor- 
pus involving  the  liberty  of  the  citizen.  Such  a  principle,  once 
established,  would  destroy  the  essential  value  of  the  writ,  as 
affording  "  a  free,  easy,  cheap,  expeditious  and  ample  "  remedy 
against  infringements  of  persona]  liberty,  and  would  tend  to 
place  the  liberty  of  the  citizen  at  the  disposal  of  a  single  judge; 
which  is  the  very  thing  the  writ  is  intended  to  prevent. 

The  case  of  the  People  v.  Mercein  (25  Wend.  R.  64),  which 
has  been  relied  upon  to  maintaip  such  a  doctripe,  involved  no 


NEW  YORK.  JULY,  1847. 


In  the  matter  of  Da  Costa. 


question  of  personal  liberty,  but  simply  the  question  whether  the 
custody  of  an  infant  child,  under  a  certain  state  of  facts,  should 
be  given  to  the  father  or  to  the  mother.  Various  writs  having 
been  issued,  and  the  matter  having  repeatedly  occupied  the  at- 
tention of  the  judges,  the  court  for  the  correction  of  errors,  after 
a  full  examination  of  the  testimony,  declared,  by  special  resolu- 
tion, that  thai  case  was  resjudicata  (see  remarks  of  Cowen,  J., 
People  v.  Mercein,  3  Hill,  440),  but  their  decision  did  not  ex- 
tend to  any  case  involving  personal  liberty:  and  no  general 
language  used  by  individual  judges,  in  their  opinion,  can  suffice 
to  abridge  or  lessen  the  constitutional  authority  of  this  writ  of 
right 

A  decision  tending  by  an  enlarged  construction  to  over- 
throw or  impair  a  fundamental  right,  must  receive  such  a 
construction  as  shall  best  preserve  the  liberties  of  the  people  — 
and  the  decision  in  this  case  on  the  point  of  res  judicata, 
declared  as  it  was  by  a  special  resolution,  only  recognizes  the 
right  of  a  judge  to  apply  the  doctrine  of  res  judicata  to  cases 
of  habeas  corpus  involving  the  custody  of  an  infant  child.  Had 
it  extended  to  all  other  cases  of  habeas  corpus,  such  decision 
would  have  been  utterly  inoperative  to  abridge  the  right  of  a 
person  restrained  of  his  liberty  to  the  full  benefit  of  the  writ, 
according  to  its  ancient  character  —  which  includes  his  right 
to  the  opinion  of  every  court  and  of  every  judge,  upon  the 
legality  of  his  imprisonment  —  for  the  reason  that  the  right  to 
this  writ  is  secured,  not  only  by  the  constitution  of  this  state, 
but  by  the  constitution  of  the  United  States,  and  can  not, 
therefore,  be  taken  away,  crippled,  or  abridged  in  any  degree 
by  the  legislation  or  the  adjudications  of  individual  states. 

3.  In  case  the  doctrine  of  res  judicata  could  apply  in  its  full 
force  to  proceedings  on  habeas  corpus,  involving  the  liberty  of 
persons,  which  is  utterly  denied,  this  matter,  upon  the  facts 
shown  by  the  record,  is  clearly  not  within  the  rule,  but  must  be 
held  to  be  res  Integra  and  res  intacta,  as  wanting  in  all  the 
essential  requisites  to  constitute  it  an  adjudicated  case.  Upon 
the  essentials  of  resjudicata,  &c.,  see  2  Kent's  Com.  12  Co.  Lit. 
352,  b.  303  a.  Bronson,  J.,  in  People  v.  Mercein,  25  Wend.  82. 


132  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Da  Costa. 

Same  case,  3  Hill,  420;  3  Cowen  and  Hill's  Phil,  on  Evidence^ 
p.  824,  note  586,  and  authorities  there  cited. 

1.  The  opinion  of  Judge  Daly  annexed  to  the  return  of  the 
respondent,  is  unaccompanied  by  any  judgment,  order  or  decree, 
and  does  not  therefore  constitute  a  record  that  can  be  pleaded 
by  way  of  estoppel.  Further  evidence  on  the  point,  whether 
or  not  there  was  an  order  is  inadmissible.  We  can  look  only  at 
the  return,  and  that  shows  the  conclusions  of  Judge  Daly's  mind, 
but  not  his  final  action  as  a  judge.  We  have  the  reasons  for 
the -act,  but  the  act  itself  has  never  been  performed.  Until  the 
act  is  performed  it  can  not  be  on  record,  and  until  the  record  is 
complete,  it  can  not  be  an  estoppel. 

2.  The  decision  of  Judge  Daly,  if  his  opinion  be  regarded  as 
such,  was  not  a  solemn  decision  of  a  court  of  justice,  or  of  a 
judge  in  the  exercise  of  his  rightful  jurisdiction,  for  the  reason 
that  a  judge  of  the  Common  Pleas,  under  the  new  constitution, 
has  no  authority  to  issue  a  writ  of  habeas  corpus  —  and  it  was 
in  a  proceeding  coram  non  judice,  for  the  additional  reason 
that  the  writ  had  been  formally  dismissed  by  the  attorney  of 
record,  by  whom  the  same  had  been  issued,  the  said  attorney 
being  clothed  also  with  full  authority  from  the  negroes_,  before 
any  order  was  made  or  decision  pronounced,  or  opinion  given, 
and  there  was,  therefore,  no  proceeding  before  the  judge,  nor 
any  conflicting  claims  to  require,  or  justify  his  decision  of  the 
questions  raised  by  the  return. 

Upon  the  right  of  a  plaintiff  to  discontinue  his  plaint  at  his 
own  pleasure,  and  suffer  a  nonsuit,  see  3  Blackstone's  Com.  376, 
7;  1  BurriWs  Prac.  241;  People  v.  Mayor's  Court  of  Albany, 
]  Wend.  36;  Wooster  v.  Burr,  2  Wend.  295. 

3.  The  proceeding  before  Judge  Daly  was  not  between  the 
same  parties  or  privies  —  but  a  matter  inter  alios  acta — be- 
tween  the  relator,  John   Inverness,   and    the  captain — with 
which  the  Africans  had  nothing  to  do.     It  was  a  proceeding 
instituted  without  their  privity  or  consent,  and  by  which  they 
are  in  no  way  bound.     The  relator  was  to  them  a  stranger,  the 
counsel  unknown  and  unauthorized:  ignon  nt  of  the  language, 
they  had  no  understanding  of  the  matter. 


NEW  YORK,  JULY,   1847. 


In  the  matter  of  Da  Costa. 


4.  A  decision  is  not  res  juaicata,  unless  the  parlies  to  be 
affected  by  it  have  had  an  opportunity  of  being  fairly  heard, 
and  the  decision  is  made  upon  due  deliberation  by  the  judge 
These  Africans  in  the  former  proceeding,  were  denied  a  hear- 
ing.    The  order  of  the  court  was  based  upon  an  admission  on 
the  record  made  without  their  authority,  knowledge  or  assent 
—  and  the  truth  of  which  they  positively  deny. 

Upon  the  point  that  records  are  only  prima  facie,  evidence, 
and  may  be  disproved,  see  Bradshaw  v.  Heath,  13  Wend.  407; 
Language  of  Hosmer,  C.  J.,  quoted  in  same  case;  Idem.  415, 
416,  and  Shumway  v.  Stillman,  6  Wend.  447;  2  Rev.  Stat. 
563,  et.  seq.  as  to  the  rights  of  the  party  to  show  the  facts  relative 
to  his  imprisonment. 

5.  The  grounds  of  the  decision  must  be  the  same  actually 
and  necessarily,  so  that  the  evidence  in  the  one  would  support 
the  decision  in  the  other. 

In  this  case,  the  former  decision  was  based  on  the  admission 
apon  the  record,  that  the  Africans  were  seamen;  the  present 
record  shows  they  are  not,  and  can  not  be,  seamen,  in  the 
meaning  of  our  law,  and  it  further  shows  a  new  imprisonment, 
manacling,  and  restraint  differing  from  any  that  appeared  in 
the  first  proceeding,  and  which,  of  itself,  admitting  them  to 
have  been  seamen,  was  a  breach  of  the  contract  assumed  to 
exist  between  them  and  the  captain  —  and  has  rendered  that 
compact  void,  and  determined  the  relationship  in  which  the 
opinion  of  Judge  Daly  declared  that  they  stood. 

6.  This  writ  should  not  be  dismissed  on  the  ground  that  the 
case  is  res  judicata,  even  did  it  possess  the  essentials  which  it 
wants,  for  the  reason  that  it  appears  by  the  opinion  of  Judge 
Daly,  that  the  Africans  were  remanded  as  seamen,  although 
admitted  by  the  captain  to  be  slaves,  and  it  being  an  estab- 
lished  principle  that  no  slave  can  either  make  or  assent  to  a 
contract,  and  it  being  the  law  of  this   state  that  all  slaves 
brought  within  its  borders  are  free,  and  that  servitude  under 
any   possible   form,   pretence,  or  circumstances,  shall  not  be 
recognized  by  our  courts,  save  in  the  single  case  of  fugitives 
held  to  service  in  the  southern  states,  it  would  be  a  violation 


13  i 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Da  Costa. 


of  constitutional  right,  a  denial  of  justice,  and  an  outrage  upon 
personal  freedom,  were  a  judge,  when  appealed  to  for  protec- 
tion upon  habeas  corpus,  to  dismiss  that  writ  upon  the  strength 
of  a  decision  shown  to  be  erroneous,  and  remand  these  Africans 
to  an  imprisonment  known  to  be  unlawful,  to  a  condition  of 
servitude  which  the  law  abhors,  and  has  peremptorily  forbid- 
den, and  to  the  power  of  a  master  who  has  threatened  them 
with  violence,  the  instant  he  escapes  from  the  jurisdiction  of  a 
free  state. 

Purroy,  for  ihe  respondent. 

EDWARDS,  J.  —  A  writ  of  habeas  corpus  was  issued  by  his 
honor,  Judge  Edmonds,  on  the  17th  day  of  July  last,  directed 
to  Clemente  Jose  Da  Costa,  master  of  the  Brazilian  bark  Lew 
Branca,  commanding  him  to  have  the  bodies  of  Jose  da  Costa 
and  Jose  da  Rocha,  by  him  imprisoned  and  detained,  as  was 
alleged,  together  with  the  cause  of  such  imprisonment  and 
detention,  before  him,  the  said  judge,  at  a  time  and  place 
therein  specified.  The  respondent  appeared  before  Judge  Ed- 
monds, and  made  his  return  to  the  said  writ,  under  oath;  to 
which  the  said  da  Costa  and  da  Rocha  put  in  an  answer,  also 
under  oath.  At  this  stage  of  the  proceedings,  by  the  consent 
of  the  counsel  for  all  the  parties,  the  writ  was  amended  in  such 
a  manner  as  to  be  returnable  before  me,  and,  by  a  similar  con- 
sent, I  allowed  the  writ  nunc  pro  tune. 

The  return  of  the  respondent  admits  the  detention  of  da 
Costa  and  da  Rocha,  and  alleges  that  before  the  issuing  and 
service  of  the  said  habeas  corpus,  to  wit:  on  the  10th  day  of 
July  last,  a  writ  of  habeas  corpus  was  allowed  and  issued,  by 
the  Hon.  Charles  P.  Daly,  one  of  the  associate  judges  of  the 
court  of  common  pleas,  in  and  for  the  city  and  county  of  New- 
York,  and  of  the  degree  of  counsellor  of  the  supreme  court, 
directed  to  the  said  respondent,  with  the  object  and  for  the 
purpose  of  producing,  before  the  said  judge,  the  persons  named 
in  the  said  first  mentioned  writ,  for  the  purpose  of  inquiring 
into  the  rouse  of  their  .detention  .or  imprisonment  by  the  said 


NEW  YORK,  JULY,  1847. 


In  the  matter  of  Da  Costa. 


respondent.  That,  in  obedience  to  the  said  writ  issued  by  the 
said  Judge  Daly,  the  respondent  produced  before  the  said 
judge,  the  persons  of  the  two  negro  men  called  Jose  da  Costa 
and  Jose  da  Rocha.  That  upon  said  writ  so  issued  by  said 
Judge  Daly,  and  upon  the  return  thereto,  proceedings  were 
duly  had  before  said  judge,  who  after  mature  deliberation,  and 
after  hearing  the  allegations  and  arguments  of  counsel  on  both 
sides,  decided  and  adjudged,  on  or  about  the  16th  day  of  July 
last,  that  the  said  Jose  da  Costa  and  Jose  da  Rocha  were 
legally  under  the  restraint  of  the  said  respondent,  and  that 
they  should  be  remanded  to  his  custody;  which  said  decision 
and  judgment  of  said  Judge  Daly,  it  is  alleged  in  the  said 
return,  are  still  in  force,  unreversed,  not  set  aside,  nor  made 
void.  The  return  further  states,  that  in  pursuance  of  said 
decision  and  adjudication,  the  persons  of  said  da  Costa  and  da 
Rocha  were  committed  to  the  custody  of  the  respondent.  The 
return  also  sets  forth  other  matters,  to  which  it  is  not  necessary, 
in  this  place,  to  allude. 

The  answer  of  da  Costa  and  da  Rocha,  does  not  deny  the 
substance  of  any  of  the  allegations  above  cited  from  the  return 
of  the  respondent. 

Upon  the  said  return  and  answer,  the  respondent  contends 
that  there  has  been  an  adjudication  of  the  matter  by  Judge 
Daly,  and  that  such  adjudication  is  binding  upon  me,  and  pre- 
cludes any  investigation  into  the  facts  of  the  case,  unless  new 
matters  are  shown,  which  have  arisen  since  the  adjudication  of 
Judge  Daly,  and  which  renders  such  investigation  proper. 

Before  the  enactment  of  the  Revised  Statutes,  the  law  seems 
to  have  been  settled,  that  the  return  of  the  respondent  was  con- 
clusive, and  that  none  of  the  facts'  contained  in  it  could  be 
controverted.  (3  Hill,  658,  note  30.)  By  the  revised  statutes, 
the  party  brought  up  may  deny  any  of  the  material  facts  set 
forth  in  the  return,  or  allege  any  fact  to  show  either  that  the 
imprisonment  or  detention  is  unlawful,  or  that  he  is  entitled  to 
bis  discharge.  (2  R.  S.  471,  p.  50.) 

If,  then,  any  of  the  material  facts  set  forth  n  the  return,  are 


136  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Da  Costa. 

not  denied  by  the  party  brought  up,  the  return,  pro  tanto,  lias 
the  same  effect  as  before  the  revised  statutes,  and  those  facts 
must  be  taken  to  be  true.  (3  Hill,  658,  note  28.) 

Upon  this  construction  of  the  law,  I  am  bound  to  assume  that 
the  facts  set  forth  in  the  return,  and  not  denied  in  the  answer, 
are  true,  and  that  da  Costa  and  da  Rocha  have  heretofore  been 
brought  before  Judge  Daly,  upon  a  writ  of  habeas  corpus,  and 
that,  after  an  investigation  into  the  causes  of  their  detention 
by  the  respondent,  Judge  Daly  adjudged  that  they  were  legally 
under  the  restraint  of  the  respondent,  and  that  they  should  be 
awarded  to  his  custody;  and  that  said  judgment  now  remains 
in  full  force. 

It  thus  appears  that  there  has  been  an  adjudication,  upon  a 
writ  of  habeas  corpus:  that  da  Costa  and  da  Rocha  were  at  the 
time  of  the  said  adjudication,  under  the  legal  restraint  of  the 
respondent. 

The  next  question  is,  does  the  principle  of  res  adjudicata 
apply  to  this  case,  and  am  I  precluded  by  the  above  mentioned 
adjudication  from  any  further  inquiry  into  the  subject  ?  In  the 
case  of  Mercein  v.  The  People  ex  ret.  Barry,  (25  Wend.  64)  it 
was  decided  by  the  court  of  errors  of  this  state,  that  the  princi- 
ple of  res  adjudicata  was  applicable  to  a  proceeding  under 
habeas  corpus.  Two  opinions  only  were  delivered;  one  by  the 
chancellor  and  the  other  by  Senator  Paige.  The  question 
under  review  had  been  decided  by  Judge  Inglis,  then  a  judge 
of  the  court  of  common  pleas,  upon  a  writ  of  habeas  corpus 
issued  by  him.  The  chancellor,  in  delivering  his  opinion,  said 
that  "  he  concurred  in  the  decision  of  Judge  Inglis,  that  the 
principle  of  res  adjudicata  was  applicable  to  a  proceeding  upon 
habeas  corpus.;  and  that  it  could  make  no  difference  in  the 
application  of  the  principle,  whether  the  first  writ  was  returna- 
ble before  a  court  of  record,  or  a  judge  or  commissioner  out  of 
court,  for,  in  neither  case,  ought  the  party  suing  out  the  writ,  to 
be  permitted  to  proceed  ad  infinitum  before  the  same  court  or 
officer,  or  before  another  court  or  officer,  having  concurrent 
jurisdiction,  to  review  the  former  decision,  while  the  facts 


NEW  YORK,  JULY,   1847. 


In  the  matter  of  Da  Costa. 


remain  the  same;  but  if  dissatisfied  with  the  first  decision, 
should  appeal  to  a  higher  tribunal. 

Senator  Paige  says,  that  "  if  a  final  adjudication  upon  a 
habeas  corpus  is  not  to  be  deemed  res  adjudicata,  the  consequen- 
ces will  be  lamentable.  This  favored  writ  will  become  an 
engine  of  oppression,  instead  of  a  writ  of  liberty."  He  further 
says,  "  I  think  that  the  following  rule  will  be  found  sustained 
by  the  cases,  viz.  :  Whenever  a  final  adjudication  of  an  infe- 
rior court  of  record,  or  of  an  inferior  court  not  of  record,  or  of 
persons  invested  with  power  to  decide  on  the  property  and 
rights  of  the  citizens,  is  examinable  by  the  supreme  court,  upon 
a  writ  of  error,  on  a  certiorari,  in  every  such  case,  such  final 
adjudication  may  be  pleaded  as  res  adjudicata,  and  is  conclu- 
sive upon  the  parties  in  all  future  controversies  relating  to  the 
same  matter."  And,  finally,  a  resolution  was  adopted  by  the 
court.  "  That  in  the  opinion  of  the  court,  the  decision  of  Judge 
Inglis  upon  the  question  of  res  adjudicata  was  correct,  and  in 
conformity  to  the  law."  This  decision  fully  ancUclearly  estab- 
lishes the  rule  that  the  principle  of  res  adjudicata  is  applicable 
to  proceedings  upon  habeas  corpus. 

The  only  question,  then,  that  remains  upon  this  branch  of  the 
case  is,  whether  the  same  subject  matter  between  the  same 
parties,  has  been  adjudged  by  an  officer  having  power  to  issue 
and  decide  upon  a  writ  of  habeas  corpus. 

First.     Is  the  subject  matter  the  same  ? 

The  subject  matter  under  the  first  writ,  was  the  imprisonment 
and  detention  of  da  Costa  and  da  Rocha,  and  the  adjudication 
of  the  judge  was,  that  they  were  "  legally  under  the  restraint 
of  the  respondent,  and  should  be  remanded  to  his  custody." 
The  subject  matter  of  the  present  writ,  is  the  detention  of  the 
same  persons  by  the  respondent;  and  I  am  called  upon  to 
decide  what  was  decided  by  Judge  Daly,  viz:  Whether  they 
are  legally  under  the  restraint  of  the  respondent  ? 

Second.     Are  the  parties  the  same? 

The  proceedings,  in  both  cases,  have  been  in  behalf  of  the 

VOL.  I.  18 


138  DECISIONS  IN  CRIMINAL  C^SES. 

In  the  matter  of  Da  Costa. 

same  persons,  against  the  same  respondent.  The  fact  that  the 
relators  are  different,  does  not  alter  the  case. 

Third.  Had  Judge  Daly  the  power  to  issue  the  writ  and  to 
decide  the  questions  arising  under  it  ? 

By  the  law,  as  it  stood  under  the  old  constitution,  it  is  not 
questioned  that  he  had  the  power.  By  the  new  law,  it  is 
enacted  that  the  "judges  of  the  court  of  common  pleas  for  the 
city  and  county  of  New-York,  shall  have  and  possess  the  same 
powers,  and  perform  the  same  duties  as  the  first  judge  and 
assistant  judges  of  the  said  court  of  common  pleas  now  have 
and  possess  and  perform."  (Laws  of  1847,  p.  281,  s.  7). 

There  are  several  matters  alleged  in  the  answer  of  da  Costa 
and  da  Rocha,  for  the  purpose  of  showing  that  there  was  irre- 
gularity in  the  proceedings  before  Judge  Daly.  The  answer  to 
all  these  allegations  is,  that  I  am  bound  by  the  adjudication, 
and  can  not  look  behind  it.  If  there  ;has  been  irregularity,  I 
have  no  power  to  decide  upon  that  question,  in  this  collateral 
proceeding.  ^The  remedy  must  be  in  a  court  sitting  as  a  court 
of  review. 

But  it  is  contended  that  new  facts  have  arisen  in  this  case 
since  the  decision  of  Judge  Daly.  The  answer  of  da  Costa  and 
da  Rocha,  sets  forth  that  since  the  said  adjudication,  and  on 
the  17th  July  last,  they  were  hand-cuffed  and  put  in  a  store- 
room, in  the  forward  cabin  of  the  vessel,  and  there  confined, 
and  that  the  respondent  also  threatened  them  with  violence 
when  he  "  got  them  at  sea."  These  are  not  new  facts  of  such  a 
character  as  to  change  the  relations  of  the  parties.  If  there  has 
been  an  abuse  of  the  right  which  it  has  been  adjudged  that  the 
respondent  had  to  the  custody  of  the  persons  held  in  restraint 
by  him,  the  remedy  is  not  by  habeas  corpus;  much  less  so  as  to 
any  threatened  violence. 

With  these  views,  I  am  of  opinion  that  the  question  pre- 
sented to  me  under  the  present  writ  of  habeas  corpus,  is  res 
adjudicata,  and  that  I  am  precluded  from  going  into  any 
investigations  of  the  facts  in  the  case;  and  that  no  new  facts 
are  set  forth  in  the  proceedings  which  authorize  any  interfer- 


NEW  YORK,  JULY,     J847. 


In  the  matter  of  Da  Costa. 


ence  by  me.  The  writ  must,  therefore,  be  dismissed,  and  Jose 
da  Costa  and  Jose  da  Rocha  remanded  to  the  custody  of  the 
respondent. 

NOTE. — The  following  is  the  decision  of  Judge  DALY,  referred  to  in  the 
preceding  case : — 

DALY,  J. — This  is  an  application  upon  a  writ  of  habeas  corpus  to  discharge 
Jose  da  Costa,  Jose  da  Rocha,  and  Maria  da  Costa,  alleged  by  the  relator,  John 
Inverness,  to  be  restrained  of  their  liberty  by  Clemento  Jose  da  Costa,  master 
of  the  Brazilian  barque  Llembranca. 

It  is  set  forth  in  the  return  of  the  master,  that  the  persons  above  named  were 
brought  from  Rio  de  Janeiro  to  the  port  of  New  York,  in  the  barque  aforesaid. 

That  the  two  first  named,  Jose  da  Costa  and  Jose  da  Rocha,  were  shipped 
on  board  the  Llembranca  at  Rio  de  Janeiro  as  part  of  the  crew,  and  as  such  he 
is  required  to  take  them  back  by  the  laws  of  Brazil.  That  the  woman  Maria 
has  come  upon  the  voyage  to  this  port  as  a  servant  and  nurse  to  his  wife  and 
family,  in  whose  service  she  now  is.  It  is  further  set  forth  in  the  return,  that 
Jose  da  Costa  and  the  woman  Maria,  are  slaves,  lawfully  acquired  by  the  re- 
spondent, according  to  the  laws  of  Brazil,  by  which  laws,  slavery  is  permitted 
and  the  acquisition,  possession,  and  transfer  of  persons  as  property,  allowed, 
recognized  and  protected. 

That  Jose  da  Rocha  is  also  a  slave,  and  the  property  lawfully  acquired  is  as 
aforesaid,  of 'Antonio  Jose  da  Rocha  Peresira,  of  Rio  de  Janerio,  part  owner 
of  the  barque,  and  by  him  committed  to  the  custody  of  the  respondent. 

These  facts  are  admitted  by  the  relator,  but  he  denies  that  they  are  sufficient 
to  justify  the  detention  of  the  parties  concerned. 

The  fact  that  Jose  da  Costa  and  Jose  da  Rocha  constitute  part  of  the  crew 
of  the  Llembranca,  is  an  answer  to  the  application  for  their  discharge.  By 
$  31st,  of  the  existing  treaty  between  the  United  States  and  Brazil,  provision 
is  made  tor  the  arrest,  detention,  and  custody  of  persons  composing  a  part  of 
the  crew  of  any  public  or  private  vessel  of  either  nation,  who  shall  desert. 

The  consuls  of  the  respective  nations  are  authorized  to  apply  to  the  proper 
judicial  authorities,  and  upon  proving  by  the  exhibition  of  the  ship's  roll, 
register  or  other  document,  that  the  persons  claimed  were  part  of  the  crew, 
they  are  required  to  be  delivered  up.  They  are  to  be  put  at  the  disposal  of  the 
consul,  and  may,  at  his  request,  be  placed  in  any  public  prison  until  sent  to 
the  vessels  to  which  they  belong,  or  to  others  of  the  same  nation.  The  treaties 
made  under  the  authority  of  the  United  States,  are  declared  by  the  Cth  Article 
of  the  Constitution  to  be  the  supreme  law  of  the  land,  to  be  binding  upon  the 
judges  of  eveiy  state,  any  thing  in  the  constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding. 

I  am  bound,  therefore,  to  regard  and  carry  out  the  provisions  of  this  treaty. 
And  it  would  be  a  palpable  violation  of  its  obvious  meaning  and  intent,  to  dis- 
charge persons  upon  a  writ  of  habeas  corpus,  admitted  to  be  part  of  the  crew 


j  40  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Da  Costa. 

of  a  Brazilian  vessel.  If  the  two  persons  should  desert,  they  could  be  re- 
claimed as  a  part  of  the  crew.  It  would  be  the  duty  of  the  judicial  tribunals 
of  this  state,  in  such  a  case,  upon  the  proper  application,  to  deliver  them  up. 

The  right  of  the  master  to  detain  them  as  a  part  of  his  crew,  is  necessarily 
implied  When  a  duty  is  imposed  to  deliver  them  to  him,  should  they  desert 
from  his  service,  he  undoubtedly  has  a  right  to  detain  them  as  a  part  of  his 
crew,  if  he  has  a  right  to  reclaim  them  when  they  leave  his  vessel. 

That  they  are  slaves  does  not  alter  or  vary  the  case,  for  were  I  to  hold  that 
they  are  free  persons,  according  to  the  laws  of  this  state,  the  master  would 
still  be  entitled  to  retain  them  as  members  of  his  crew. 

They  must,  therefore,  be  returned  on  board  the  vessel  from  whence  they 
were  brought  in  obedience  to  this  writ. 

It  will  not  be  necessary  to  determine  the  principal  question  argued  upon  the 
return,  to  wit: — Whether  slaves  voluntarily  brought  into  this  state,  are  to  be 
regarded  as  property  within  the  meaning  of  that  section  of  the  treaty  by  which 
the  United  States  has  stipulated  specially  to  protect  the  property  of  subjects  of 
Brazil . 

The  point  is  not  material  to  the  matter  now  before  me.  Da  Rocha  and  da 
Costa  are  left  in  the  custody  of  the  respondent,  not  upon  the  ground  that  they 
are  his  property,  but  because  they  compose  a  portion  of  his  crew. 

The  question  could  only  be  material  as  far  as  respects  the  right  of  the  re- 
spondent to  detain  the  woman  Maria.  But  she,  by  her  own  declaration,  is 
under  no  restraint.  The  writ  has  been  sued  out  without  her  knowledge, 
privity  or  consent.  She  has  expressly  declared  her  unwillingness  to  leave  the 
service  of  the  respondent,  and  expressed  her  desire  to  return  with  him  to  Kio 
de  Janeiro. 

As  she  is  on  board  the  respondent's  vessel  of  her  free  will,  she  can  not  be 
regarded  as  under  restraint.  The  interposition  of  this  writ,  therefore,  in  her 
behalf,  is  not  called  for.  She  has  elected  to  remain  where  she  now  is,  and 
there  is  no  room  to  make  any  order  respecting  her. 


ALBANY,  JANUARY,  1848. 


SUPRREME  COURT.     Albany  General  Term,  January,  1848 
Harris,  Watson  and  Parker,  Justices. 

THE  PEOPLE  vs.  FRANKLIN  GRAHAM. 

A  recognizance  taken  in  a  court  of  Oyer  and  Terminer,  for  the  appearance  of 
a  prisoner  at  a  court  of  General  Sessions,  to  answer  to  a  pending  indictment 
must  be  entered  in  the  minutes  of  the  court,  or  it  will  be  void. 

S.ich  entry  must  contain  all  the  substantial  parts  of  the  recognizance,  such  as 
the  acknowledgment  of  indebtedness,  the  offence  charged  and  the  condition 
tc.-,  a  mere  memorandum  that  a  recognizance  in  a  certain  sum  was  taken 
is  not  sufficient. 

*Vhat  was  said  between  the  clerk  and  the  bail,  on  the  taking  of  a  recognizance, 
can  not  be  proved  by  the  certificate  of  the  clerk. 

This  was  an  action  of  debt  on  a  recognizance,  tried  at  the 
Schoharie  circuit,  before  PARKER,  circuit  judge,  in  May,  1846. 

The  plaintiffs  alleged  in  the  declaration,  that  on  the  23d  day  of 
October,  1844,  the  defendant  appeared  before  the  court  of  Oyer 
and  Terminer  of  the  county  of  Schoharie,  and  acknowledged 
himself  to  be  indebted  to  the  people  of  the  state  of  New  York 
in  the  sum  of  four  hundred  dollars,  to  be  well  and  truly  paid, 
if  default  should  be  made  in  a  certain  condition,  &c.,  that  if  one 
Robert  Streeter  should  personally  appear  at  the  next  court  of 
general  sessions  of  the  peace,  to  be  held  in  and  for  the  said 
county  of  Schoharie,  then  and  there  to  answer  to  an  indictment 
preferred  against  him  the  said  Robert  Streeter,  for  grand  lar- 
ceny, and  to  do  and  receive  what  should  by  the  court  be  then 
and  there  enjoined  upon  him,  the  said  Robert  Streeter,  and 
should  not  depart  the  court  without  leave,  then  the  said 
recognizance  should  be  void,  &c.  It  was  then  alleged  that  the 
said  Streeter  did  not  appear  at  said  court  of  general  sessions, 
but  upon  being  duly  called  made  default,  and  that  the  recogni- 
zance was  declared  forfeited  by  an  order  of  the  court,  &c.  &c. 

The  defendant  pleaded  nul  tiel  record 

At  the  trial,  the  plaintiffs,  to  maintain  the  issue  on  their  part, 
introduced  as  evidence  an  exemplified  copy  of  the  record  of  the 


142  DECISIONS  IN  CRIMINAL  CASES. 

The  people  v.  Graham. 

minutes  of  the  Oyer  and  Terminer  of  Schoharie  county,  and 
also  an  exemplified  copy  of  the  record  of  the  minutes  of  fhe 
court  of  general  sessions,  which  copies  are  as  follows: 

"  At  a  court  of  Oyer  and  Terminer,  held  in  and  for  the  county 
of  Schoharie,  at  the  court  house,  in  the  town  of  Schoharie,  on 
Tuesday  the  22nd  day  of  October,  1844: 

Present — His  Honor  Amasa  J.  Parker,  circuit  judge;  Charles 
Goodyear,  Martinus  Mattice,  John  Westover,  Jonas  Krum, 
Robert  EAdridge,  judges. 

The  People  v.  Robert  Streeter. — Indicted  for  grand  larceny. 
Defendant  arraigned,  and  pleaded  not  guilty. 

The  court  assign  R.  R.  Menzie  as  counsel  for  defendant. 
Court  adjourned  till  8  o'clock  to-morrow  morning. 

Wednesday,  October  23rd,  1844.  Court  met  pursuant  to 
adjournment. 

Present- — His  Honor  Amasa  J.  Parker,  circuit  judge;  Charles 
Goodyear,  Martinus  Mattice,  Jonas  Krurn,  John  Westover, 
Robert  Eldridge,  judges. 

The  People  v.  Robert  Streeter. — Grand  larceny. 

Indictment  continued  to  next  February  sessions. 

Principal  recognized  to  appear  in  sum  of  $400.  Franklin 
Graham  bail  for  his  appearance,  do.  $400.  Which  recogni- 
sance was  taken  in  the  following  words:  You,  Robert  Streeter 
and  Franklin  Graham,  acknowledge  yourselves  to  be  severally 
indebted  to  the  people  of  the  state  of  New  York,  each  in  the 
sum  of  four  hundred  dollars,  to  be  well  and  truly  paid,  if  default 
be  made  in  the  condition  following:  The  condition  of  this 
recognizance  is,  that  if  you,  Robert  Streeter,  shall  personally 
appear  and  remain  at  the  next  court  of  general  sessions  of  the 
peace,  to  be  held  in  and  for  the  county  of  Schoharie,  to  answei 
to  an  indictment  against  you  for  grand  larceny,  and  shall  then 
and  there  do  and  receive  what  may  be  enjoined  on  you  by  the 
court,  and  shall  not  depart  the  court  without  leave,  then  this 


ALBANY,  JANUARY,   1848.  14  3 

The  People  v.  Graham. 

recognizance  shall  be  void,  otherwise  of  force.     Are  you,  and 
each  of  you,  therewith  content? 

Schoharie  County,  Cleric's  Office,  ss. — I,  Thos.  McArthur, 
clerk  of  said  county,  do  hereby  certify  that  I  have  compared 
the  preceding  copy  of  the  minutes  of  the  court  with  the 
original,  and  that  it  is  a  correct  transcript  therefrom  (with  the 
addition  of  the  recognizances  being  fully  expressed  in  the  copy) 
and  of  the  whole  of  such  original  minutes,  so  far  as  relates  to 
Robert  Streeter. 

Witness  my  hand  and  official  seal,  the  16th  day  of 

L.  s.  May,  1846. 

THOS.  MCARTHUR,  Clerk. 

At  a  court  of  general  sessions  of  -the  peace,  held  in  and  for 
the  county  of  Schoharie,  at  the  court  house,  in  the  town  of 
Schoharie,  on  Friday  the  seventh  day  of  February,  A.  D.,  1845: 

Present — His  Honor  Charles  Goodyear,  first  judge;  John 
Westover,  Robert  Eldridge,  Jonas  Krum,  Martinus  Mattice, 
judges. 

The  People  v.  Robert  Streeter. — Grand  larceny. 

The  defendant  having  been  duly  called,  and  not  appearing, 
and  Franklin  Graham,  bail  for  the  appearance  of  the  said 
defendant  at  this  court,  having  been  duly  called  to  produce  said 
Robert  Streeter,  and  he  not  being  produced — Ordered,  on 
motion  of  Thos.  Lawyer,  district  attorney,  pro.  tern.,  that  the 
recognizance  in  this  cause  be  estreated. 

Schoharie  County,  Clerk's  Office,  ss. — I,  Thomas  McArthur, 
clerk  of  said  county,  do  certify  that  I  have  compared  the  pre- 
ceding copy  with  the  original  minutes  of  the  court,  and  that  it 
is  a  correct  transcript  therefrom  and  of  the  whole  of  such 
original,  so  far  as  relates  to  said  Robert  Streeter. 

Witness  my  hand  and  official  seal,  the  16th  day  of 
L.  s.  May,  1846. 

THOS.  Me  ARTHUR,  Clerk. 


144  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Graham. 

The  counsel  for  the  defendant  objected  to  the  introduction 
of  the  certificates  upon  the  following  grounds: 

1.  It  did  not  appear  that  a  recognizance  roll  had  been  made, 
before  the  commencement  of  the  suit, 

2.  It  did  not  appear  that   any  recognizance  was  entered  01 
any  record  of  a  recognizance  made  and  filed. 

3.  That  there  was  a  variance  between  the  declaration  and 
proof — that  the  declaration  does  not  aver  that  any  order  was 
made  transmitting  the  recognizance  from  the  oyer  and  terminer 
to  the  general  sessions. 

The  court  admitted  the  testimony;  to  which  decision  the 
iefendant  excepted;  and  the  testimony  being  here  closed  on 
both  sides,  the  judge  directed  a  verdict  for  the  plaintiff,  subject 
to  the  opinion  of  the  supreme  court;  and  the  jury  accordingly 
foun-d  a  verdict  for  the  plaintiffs  for  the  debt  daimed,  subject 
to  the  opinion  of  the  supreme  court. 

R.  R.  Menzie,  for  defendant. 

Point  1st.  The  plaintiff  should  have  been  nonsuited  on 
the  trial  on  the  ground  that  no  legal  or  binding  recognizance 
was  entered  into  by  defendant  as  required  by  statute,  and  that 
no  recognizance  roll  had  been  made  and  filed.  All  the  recog- 
nizances required  or  authorized  to  be  taken  in  any  criminal 
proceeding  in  open  court,  by  any  court  of  record,  must  be 
entered  on  the  minutes  of  such  court,  and  the  substance  thereof 
read  to  the  person  recognized.  All  other  recognizances  in  any 
criminal  matter  or  proceeding,  or  in  any  proceeding  under  the 
law  respecting  the  internal  police  of  this  state,  must  be  in 
writing  and  subscribed  by  the  parties  to  be  bound  thereby.  (2 
R.  S.  746,  §24.)  A  mere  entry  in  the  minutes  of  the  court 
not  containing  an  acknowledgment  of  indebtedness  to  the 
people  of  this  state,  does  not  amount  to  a  recognizance.  (  The 
People  v.  Rundle,  6  Hill,  506;  17  Wend.  252;  4  ib.  387.) 

Point  2nd.  The  suit  was  improperly  brought.  The  district 
attorney  was  not  authorized  to  sue;  no  order  to  prosecute  was 
entered;  this  appears  affirmatively  from  the  plaintiff's  evidence. 


ALBANY,  JANUARY,    1848. 


The  People  v.  Graham. 


Whenever  any  recognizance  is  directed  by  law  to  be  estreated, 
such  estreat  shall  be  made  by  the  entry  of  an  order  directing 
the  same  to  be  prosecuted,  and  the  same  shall  be  prosecuted  as 
herein  directed.  (2  R.  S.  486,  §  31.)  It  is  provided,  (2  R.  S. 
485,  §  29)  that  whenever  any  recognizance  to  the  people  of 
this  state  shall  have  become  forfeited,  the  district  attorney  of 
the  county  in  which  such  recognizance  was  taken,  shall  pro- 
secute the  same  by  action  of  debt  for  the  penalty  thereof,  and 
the  pleadings  and  proceedings  shall  be  the  same  in  all  respects 
as  in  personal  actions  for  the  recovery  of  any  debt,  except  that 
it  shall  not  be  necessary  to  allege  or  prove  any  damages  by 
reason  of  a  breach  of  the  condition  of  such  recognizance;  but 
on  such  breach  being  found  or  confessed,  or  upon  a  judgment 
by  default,  the  judgment  shall  be  for  the  penalty  of  the  recog- 
nizance. It  is  conceded  that  it  is  not  necessary  to  aver  in  the 
declaration  that  an  order  was  entered  to  prosecute.  (  The  People 
v.  Blankman,  17  W.  R.  252.)  But  the  defendant  is  at  liberty 
to  insist  upon  the  argument  that  no  order  to  prosecute  was 
entered,  although  the  objection  was  not  taken  at  the  trial. 
The  defect  could  not  have  been  obviated,  if  made  at  the  trial. 
On  a  case  made,  if  it  appear  that  the  plaintiff  ought  not  to  have 
recovered  on  an  objection  which,  if  it  had  been  specifically 
taken  at  the  trial,  could  not  have  been  obviated,  the  verdict 
will  be  set  aside.  (Rich  v.  Penfield,  1  W.  R.  380;  Lawrence  v 
Borke,  5  W.  R.  301.) 

Point  3rd.  The  indictment  being  found  on  the  pretended 
recognizance  taken  in  the  court  of  oyer  and  terminer,  the 
general  sessions  had  no  jurisdiction  of  the  matter,  without  an 
order  being  entered  in  the  court  of  Oyer  and  Terminer.  The 
declaration  does  not  aver  that  an  order  was  made  sending  the 
indictment  and  recognizance  to  the  sessions^  In  this  there  is 
a  material  variance.  The  court  of  Oyer  and  Terminer  may,  by 
an  order  in  their  minutes,  send  indictments  to  the  general 
sessions  (2  R.  S.  205,  §  31).  The  whole  of  the  evidence  offered 
on  the  trial  ought  to  have  been  disregarded  —  the  minutes  of  the 
court  are  not  properly  certified.  It  appears  from  the  certificate 

VOL.  I.  19 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Graham. 


of  the  clerk,  that  the  copy  contains  more  than  the  original;  see 
2  R.  S.  403,  §  59,  as  to  the  form  of  such  certificate.  (7  Hill,  42, 
4  Wend.  R.  387.) 

P.  S.  Danforth  (district  attorney),  for  the  people. 

I.  The    recognizance    declared  upon  was    a  record    in  th* 
minutes  of  the  court  of  Oyer  and  Tenninerof  Schoharie  count} 
(2  Rev.  Stat.  624,  §24,  2d  ed.;  2  Bouvier's  Law  Dictionary, 
413),  as  to  the  form  of  a  recognizance. 

II.  The  statute  does  not  authorize  the  making  of  a  recogni- 
zance roll,  but  directs  in  what  manner  the   recognizance  is  to 
be  taken  and  how  it  is  to  be  prosecuted.    (2  R.  S.  398,  §29,  4 
Wend.  387.) 

III.  There  is  no  variance  between  the  declaration  and  proof, 
nor  is  it  necessary  or  proper  to  aver  that  an  order  was  made 
transmitting  the  recognizance  from   the  Oyer  and  Terminer  to 
the  general  sessions.  (  17  Wend.  R.  252). 

Per  Curiam.  The  statute  requires  (2  JR.  S.  746,  §  24)  all 
recognizances  authorized  to  be  taken  in  any  criminal  proceed- 
ings, in  open  court,  by  any  court  of  record,  to  be  entered  in  the 
minutes  of  such  court,  and  the  substance  thereof  to  be  read  to 
the  party  recognized.  That  requirement  was  wholly  disre- 
garded in  this  case.  No  part  of  the  substance  of  the  recogni- 
zance was  entered  in  the  minutes  of  the  court:  there  was  entered 
only  a  memorandum  of  the  fact  that  a  recognizance  was  taken. 
It  does  not  help  the  matter  that  the  clerk  certifies  he  addressed 
the  defendant  in  appropriate  words,  in  taking  the  recognizance. 
The  failure  to  comply  with  the  statutory  requirement  can  not 
be  supplied  by  any  thing  that  was  said  at  the  time  between  the 
clerk  and  the  defendant.  All  that  was  then  said  is  improperly 
inserted  in  the  certificate,  and  could  not  be  proved  by  it.  The 
clerk  can  only  certify  what  appears  of  record. 

All  the  substantial  parts  of  the  recognizance,  such  as 
the  acknowledgment  of  indebtedness,  the  indictment  against 
Streeter  and  the  offence  charged,  the  condition,  &c.,  should 


ALBANY,  MAY,   1848. 


The  People  v.  Finnegan. 


have  been  entered  in  the  minutes  of  the  court  ( The  People  v. 
Rundle,  6  Hill,  506). 

No  legal  recognizance  having  been  taken,  judgment  must  be 
given  for  the  defendant. 

Judgment  for  the  defendant. 


SUPREME  COURT.     Albany  General  Term,  May,  1848.     Harris, 
Parker  and  Watson  Justices. 

THE  PEOPLE  vs.  JOHN  FIXNEGAN. 

As  a  general  rule,  it  is  not  competent,  in  support  of  the  testimony  of  a  wit- 
ness, for  the  party  calling  him,  to  prove  that  he  has  made  declarations  out 
of  court  corresponding  with  his  testimony  in  court.  The  exceptions  to  this 
rule  stated. 

And  this  rule  is  applicable  to  cases  where  an  attempt  is  made,  on  a  cross- 
examination,  to  throw  doubts  on  the  testimony  of  a  witness,  as  well  as  to 
cases  where  other  witnesses  have  been  called  and  examined  to  contradict  the 
statement  of  the  witness. 

An  exception  is  available  for  the  purpose  of  correcting  an  error  in  the  admis- 
sion or  rejection  of  evidence,  in  granting  or  refusing  a  nonsuit,  in  charging 
or  refusing  to  charge  the  Jury  on  a  specific  proposition,  or  in  deciding  any 
question  on  the  trial  affecting  the  merits ;  but  all  that  relates  to  the  manner 
of  onducting  the  trial,  to  the  forms  of  the  questions  asked,  if  not  objectiona- 
ble in  substance,  and  to  the  range  allowed  to  counsel  in  their  arguments,  is 
matter  of  discretion,  as  to  which  a  remedy  for  a  supposed  error  can  not  be 
had  by  an  exception. 

Where  the  court  permitted  the  counsel  for  the  people  to  urge  to  the  jury  that 
they  might  infer  from  the  prisoner's  omission  to  prove  a  good  character,  that 
his  character  was  bad,  because  the  counsel  for  the  prisoner  had  stated  to  the 
jury  in  opening  the  defence  that  he  had  known  the  prisoner  from  his  youth 
and  knew  him  to  be  a  man  of  fair  character,  held,  that  such  decision  could 
not  be  reviewed  on  exception,  the  latitude  to  be  allowed  counsel  in  addressing 
the  jury  being  a  matter  of  discretion ;  but  that  the  proper  way  to  have  raised/ 
the  question  was  by  asking  the  court  to  charge,  after  the  coun.s*?rVaa[*.a- 
dressed  thu  jury,  on  a  specific  proposition  as  to  the  l«v&-Ji  presumption,  anjMf 
the  court  refused  so  to  charge  then  to  e^^P"1  to  suc^  refusal. 

In  criminal,  as  well  as  in  civil  ca«^8i  except  in  a  criminal  prosecutwn  for  libel, 
it  is  the  duty  of  th*  ••—' l  lo  decide  the  questions  of  law  and  of  the  jury  to 
decide  the  o.-'tions  of  fact- 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v.  Finnegan. 


Certiorari  to  the  mayor's  court  of  the  city  of  Albany.  The 
prisoner  was  indicted  and  convicted  of  robbery  in  the  first  de- 
gree. The  indictment  charged  that  the  prisoner,  on  the  20th 
day  of  November,  1847,  at  the  city  and  county  of  Albany,  with 
force  and  arms,  in  and  upon  one  William  F.  Terhune,  &c., 
feloniously  did  make  an  assault  and  certain  articles  of  per- 
sonal property,  therein  described  and  belonging  to  the  said 
Terhune,  from  the  person  of  the  said  Terhune  then  and  there 
violently  and  feloniously  did  steal,  take  and  carry  away,  to  the 
great  damage,  &c.,  and  against  the  form  of  the  statute,  &c.  The 
prisoner  pleaded  not  guilty,  and  the  cause  came  on  to  trial  in 
the  Albany  mayor's  court  on  the  16th  February,  1848.  After 
Terhune  had  been  called  as  a  witness  on  the  part  of  the  prose- 
cution and  had  been  fully  examined  and  cross  examined  as  to 
the  circumstances  of  the  transaction  in  detail,  Weare  D.  Par- 
sons was  called  as  a  witness  for  the  prosecution  and  testified 
that  he  was  the  keeper  of  the  Carlton  House,  where  Terhune 
stopped  at  the  time  of  the  alleged  robbery;  that  he^recollects 
that  Terhune  came  in,  that  evening  about  eight  o'clock,  that 
his  back  was  covered  with  sand  and  his  knees  and  other  parts 
of  his  body  were  covered  with  clay  or  dirt;  that  his  face  was  a 
little  scratched,  &c.,  and  that  he  said  something  when  he  came 
in.  He  was  then  asked  by  the  district  attorney  the  following 
question.  What  did  Terhune  say  when  he  came  in  about  the 
robbery  and  the  persons  who  robbed  him?  The  prisoner's 
counsel  objected  to  the  proof  by  this  witness  of  the  account 
given  by  Terhune  on  that  occasion,  of  the  manner  in  which  he 
was  robbed,  and  of  the  persons  who,  he  alleged,  committed  the 
robbery.  The  court  overruled  the  objection  and  the  counsel 
for  the  prisoner  excepted.  The  witness  then  answered,  that 
Terhune  came  into  the  house  and  said  he  had  been  robbed. 
Witness  asked  him  of  how  much,  and  he  stated  of  one  hundred 
aurstjvtfinty  dollars,  or  something  near  that.  Witness  then 
3iJ<ed  him  where,  cm.d  he  answered  somewhere  in  the  suburbs 
of  the  ^.ity;  he  could  not  tell  w^ere;  but  it  was  somewhere  on 
the  hill.  Witness  then  asked  him  it  L  ,  knew  who  it  was  that 
robbed  him.  The  prisoner's  counsel  objecteu  f<*-*Jcularly  to 


ALBANY,  MAY,  1848. 


The  People  v.  Finnegan. 


(he  witness  stating  who  Terhune  said  had  robbed  him.  The 
court  overruled  the  objection  and  the  prisoner's  counsel  ex- 
cepted.  The  witness  then  stated  the  particulars  of  the  trans- 
action as  related  by  Terhune,  including  a  description  of  the 
persons  who  robbed  him,  though  Terhune  said  he  did  not  know 
their  names. 

While  the  counsel  for  the  people  was  addressing  the  jury,  he 
said  he  had  two  questions  which  he  would  put  to  the  prisoner's 
counsel  and  which  he  wished  them  to  answer,  if  they  could, 
and  which  were  of  vital  importance  to  the  prisoner.  The  first 
of  which  was,  why  they  had  not  proved  the  character  of  the 
prisoner  to  be  good?  That  they  would  have  done  this  if  they 
could,  and  not  having  done  so,  the  fair  inference  was  that  they 
could  not  do  it,  because  his  character  was  bad.  The  counsel 
for  the  prisoner  objected  to  these  comments  upon  the  fact  of 
the  omission  to  prove  the  prisoner's  character,  and  claimed  that 
no  such  inference  should  be  drawn  from  the  fact.  The  court 
decided  that  as  the  counsel  for  the  prisoner,  in  opening  tht, 
cause  had  stated  that  he  had  known  the  prisoner  from  his  youth 
up  and  knew  him  to  be  a  man  of  fair  character,  the  public  pro- 
secutor might  in  reply,  in  answer  to  that  statement  comment 
upon  the  fact  that  no  evidence  of  good  character  had  been 
produced  by  the  prisoner,  and  that  the  court  saw  nothing  ob- 
jectionable in  the  comments  so  made.  To  this  decision  and 
ruling  of  the  court,  the  counsel  for  the  prisoner  excepted. 

The  court  charged  the  jury  among  other  things  that  they 
were  judges  of  the  law  and  the  fact  in  this  case,  and  that,  for 
that  reason,  the  court  had  less  power  in  criminal,  than  in  civil 
cases,  and  that  the  duty  of  the  court  was  only  advisory:  to  this 
point  of  the  charge  the  prisoner's  counsel  excepted. 

The  jury  found  the  prisoner  guilty  of  robbery  in  the  first 
degree.  The  court  suspended  sentence,  to  give  the  prisoner's 
counsel  an  opportunity  to  make  a  bill  of  exceptions,  but 
ordered  that  the  prisoner  in  the  meantime  should  remain  in 
custody,  and  should  not  be  let  to  bail.  A  bill  of  exceptions 
having  been  perfected,  and  the  proper  certificate  of  a  judge 
obtained,  as  required  by  2  R.  S.  736,  §  24,  the  district  attor- 


150  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Finnegan. 

ney  removed  the  indictment,  bill  of  exceptions  and  other 
proceedings  to  this  court,  by  writ  of  certiorari,  according  to 
the  provision  of  section  '27,  2  R.  S.  736. 

//.  G.  Wheaton,  for  the  prisoner,  made  the  following  points: 

I.  The  court  erred  in  admitting  the  witness  Parsons  to  tes- 
tify to  what  Terhune  told  him  took  place  on  the  night  of  the 
robbing,  and  particularly  to  what  he  said  as  to  who  it  was  that 
had  robbed  him.    (Dudley  v.  Bolles,  24  Wend.  R.  472.) 

II.  The  court  erred  in  deciding  that  the  counsel  had  a  right 
to  urge  to  the  jury,  that  they  might  infer  from  the  prisoner's  omis- 
sion to  prove  a  good  character,  that  his  character  was  bad. 
( The  People  v.  White,  24  Wend.  520,  573.) 

III.  The  court  erred  in  charging  the  jury  that  they  were  the 
judges  of  the  law  and  the  fact,  and  that  the  only  duty  of  the 
court  was  advisory.     (Cow.  and  Hill's  notes,  1501.) 

S.  H.  Hammond  (district  attorney),  for  the  people. 

By  the  Court,  PARKER,  J.  What  Terhune  told  Parsons  on 
the  night  of  the  robbery,  could  not  have  been  received  in 
evidence,  on  the  ground  that  it  was  a  part  of  the  res  gesta.  It 
occurred  subsequent  to  the  robbery,  though  very  soon  after  it. 
It  was  clearly  no  part  of  the  transaction  itself,  nor  was  it- 
necessary  to  the  proper  understanding  of  any  part  of  what  was 
done. 

But  it  was  probably  received  in  evidence  for  the  purpose  of 
corroborating  the  testimony  of  Terhune,  who  had  previously 
been  examinr.l  as  a  witness  for  the  prosecution,  by  showing 
that  he  made  the  same  statements  out  of  court  and  immediately 
after  the  occurrence  which  he  had  made  as  a  witness  in  court. 
There  is  certainly  some  authority  for  receiving  evidence  of 
that  character.  {People  v.  Vane,  12  Wend.  R.  78,  and  cases  there 
cited.}  But  this  question  and  all  the  authorities  bearing  upon 
it  have  been  fully  examined  in  Robb  v.  Hac/cley  (23  Wend.  50), 
where  it  is  decided,  in  a  very  learned  opinion  delivered  by 
Bronson,  J.,  that  such  evidence  is  not  admissible.  This  last 


ALBANY,  MAY,   IS4S. 


The  People  t>.  Finnegan. 


cited  case  was  approved  and  followed  in  Dudley  v.  Bolles  (24 
Wend.  465,  472),  and  the  law  on  this  point  must  now  be  re- 
garded as  well  settled  by  these  later  decisions.  A  careful 
reading  of  the  case  of  The  People  v.  Vane  shows  that  the  ques- 
tion did  not  necessarily  arise  in  that  case,  and  the  dictum  of 
the  court  on  this  point  must  now  be  regarded  as  overruled.  In 
England,  as  well  as  in  this  country,  it  is  believed  such  evidence 
is  no  longer  admissible.  (The  King  v.  Parker,  3  Doug.  242; 
Bull.  J\T.  P.  294;  1  Starkie  Ev.  148;  1  Phil.  Ev.  107,  307, 
note;  1  Starkie  Ev.  149,  note;  1  Cow.  and  Hill's  notes,  776.) 
The  exceptions  to  the  rule,  as  now  established  in  this  state,  are 
when  the  witness  is  charged  with  giving  his  testimony  under 
the  influence  of  some  motive  prompting  him  to  make  a  false 
or  colored  statement,  in  which  case  it  is  said  it  may  be  shown 
that  he  made  similar  declarations  at  a  time  when  the  imputed 
motive  did  not  exist:  and  where  there  is  evidence  in  contra- 
diction, tending  to  show  that  the  account  of  the  transaction 
given  by  the  witness  is  a  fabrication  of  a  late  date,  it  is  said  it 
may  be  shown  that  the  same  account  was  given  by  him  before 
its  ultimate  effect  and  operation,  arising  from  a  change  of  cir- 
cumstances, could  have  been  foreseen.  (Robb  v.  Hackley,  23 
Wend.  50.)  But  neither  of  these  exceptions  are  applicable  to 
the  case  under  consideration.  The  evidence  in  this  case  was 
received  only  for  the  purpose  of  answering  the  doubts 
attempted  to  be  thrown  by  the  cross-examination  upon  the 
testimony  of  Terhune.  But  it  was  not  admissible  for  that  pur- 
pose. It  stood  upon  the  same  footing  as  if  it  had  been  offered 
to  support  the  witness  after  other  witnesses  had  been  called  to 
contradict  him.  What  Terhune  had  previously  said  was  mere 
hearsay,  and  could  add  nothing  to  the  weight  of  his  testimony. 
The  court  below  erred  therefore  in  receiving  the  evidence. 

Tke  next  alleged  ground  of  error  is,  that  the  court  permitted 
the  counsel  for  the  people  to  urge  before  the  jury,  that  they 
might  infer,  from  the  prisoner's  omission  to  prove  a  good  cha- 
racter, that  his  character  was  bad.  This  was  permitted  by  the 
court  for  lhe  reason  that  the  counsel  for  the  prisoner,  in  opening 
the  defence,  had  stated  that  he  had  known  the  prisoner  from 


152 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Finnegan. 


his  youth,  and  knew  him  to  be  a  man  of  fair  character  It  is 
supposed  that  the  refusal  of  the  court  to  restrain  the  counsel  for 
the  people  in  his  argument,  within  what  was  suggested  by  the 
defendant's  counsel  as  the  true  limit,  will  bring  this  case  within 
the  decision  in  The  People  v.  White  (24  Wend.  520).  In  that 
case  the  judge  in  his  charge,  after  alluding  to  the  benefit  of 
good  character  to  the  accused  in  a  doubtful  case,  called  the 
attention  of  the  jury  to  the  absence  of  such  proof  in  the  case 
before  them,  and  it  was  held  erroneous  and  ground  for  a  new 
trial.  But  although  it  may  be  error  so  to  charge,  it  is  not  for 
the  counsel  so  to  argue,  or  for  the  court  to  permit  such  argu- 
ment. The  limits  within  which  counsel  are  to  be  restrained  is 
a  matter  of  discretion,  and  an  exercise  of  that  discretion  can 
not  be  reached  and  corrected  by  an  exception.  The  prisoner's 
counsel  should  have  submitted  to  the  court  a  request  to  charge 
in  regard  to  the  presumption  claimed  to  arise  from  the  omission 
to  prove  good  character,  and  to  such  charge,  or  to  the  refusal 
to  charge,  an  exception  could  have  been  taken.  An  exception 
is  available  for  the  purpose  of  correcting  an  error  in  the 
admission  or  rejection  of  evidence,  in  granting  or  refusing  a 
nonsuit,  in  charging  or  refusing  to  charge  the  jury  on  a  specific 
proposition,  or  in  deciding  any  question  on  the  trial  affecting 
the  merits.  All  these  matters  properly  belong  to  the  record  as 
presented  by  a  bill  of  exceptions.  But  all  that  relates  to  the 
manner  of  conducting  the  trial,  to  the  forms  of  the  questions 
asked,  if  not  objectionable  in  substance,  to  the  restricted  or 
wide  range  allowed  to  counsel  in  their  arguments,  are  matters 
of  discretion  in  the  court  before  which  the  trial  is  had,  and  as 
to  them,  a  remedy  for  a  supposed  error  can  not  be  had  by  an 
exception.  The  second  exception  is  not  therefore  available. 

The  third  point  made  by  the  defence  is,  that  the  court  erred 
in  charging  that  me  jury  were  the  judges  of  the  law  and  the 
fact,  and  that  the  only  duty  of  the  court  was  advisory.  This 
was  erroneous.  It  is  only  on  the  trial  of  indictments  for  libel, 
that "  the  jury  have  the  right  to  determine  the  law  and  the 
fact"  (Const,  of  New  York,  Art.  1,  Sec.  8).  In  all  other 
criminal  prosecutions,  as  well  as  in  all  civil  actions,  it  is  the 


ALBANY,  MAY,   1548. 


The  People  v.  Finnegan. 


duty  of  the  court  to  decide  the  questions  of  law  and  of  the  jury 
to  decide  the  questions  of  fact.  (Carpenter  v.  The  People,  8 
Barb.  S.  C.  R.  603;  Cow.  $  Hill's  Notes  to  Phil.  Ev.  1501; 
Barb.  Cr.  L.  2d  ed.  353;  2  Sumner  R.  240,  243;  2  Blackf. 
156,  Mdis.  R.  156.)  In  2  Sumner,  240,  Story,  J.,  said,  it  had 
been  the  opinion  of  his  whole  professional  life,  that  the  jury  are 
no  more  judges  of  the  law,  in  a  capital  or  other  criminal  case, 
upon  the  plea  of  not  guilty,  than  they  are  in  every  civil  case 
tried  upon  the  general  issue.  He  said  that,  in  each  case,  they 
had  the  physical  power,  but  not  the  moral  right,  to  decide  the 
law  according  to  their  own  notions  or  pleasure.  That  it  is  the 
duty  of  the  court  to  instruct  them  as  to  the  law,  and  of  the  jury 
to  follow  such  instruction.  That  if  the  jury  were  to  decide,  it 
would  render  the  law  uncertain:  it  would  be  almost  impracti- 
cable to  learn  what  they  did  decide;  the  court  would  have  no 
right  to  review  their  decisions,  and  every  person  has  a  right  to 
be  tried  according  to  the  fixed  laws  of  the  land. 

A  wrong  impression  on  this  point  has  prevailed  to  some 
extent  in  the  community,  and  it  is  time  it  was  corrected.  The 
doctrine  that  the  jury  are  to  decide  the  law  in  criminal  cases, 
with  the  single  exception  made  by  our  state  constitution,  can 
not  be  supported  either  upon  principle  or  by  authority. 

The  proceedings  in  the  court  below  must  be  reversed,  and  a 
new  trial  awarded  in  the  Albany  mayor's  court. 

VOL.  I.  20 


154  DECISIONS  IN  CRIMINAL  CASES. 


NEW  YORK  OYER  AND  TERMINER.     Before  Edmonds,  Justice,  a  id 
Aldermen  Stevens  and  Dodge. 

THE  PEOPLE  vs.  JOHN  S.  Austin. 

Where  an  indictment  contaius  several  counts  charging  the  same  offence  in  dif- 
ferent forms,  the  prosecution  will  not  be  compelled  to  elect  on  which  count 
they  ask  a  conviction.  Such  election  will  be  directed  only  when  the  several 
counts  charge  separate  and  distinct  offences. 

It  is  not  collateral  but  relevant  to  the  main  issue  to  inquire  into  the  motives 
which  influence  a  witness  in  giving  his  testimony,  and  a  party  examining  a 
witness  in  regard  to  them,  is  not  bound  by  his  answers  but  may  contradict 
him. 

A  sufficient  foundation  is  laid  for  such  contradiction  if  the  attention  of  the 
witness  has  been  directed  to  the  time,  place  and  circumstances  attending  an 
alleged  statement  made  by  him,  and  the  name  of  the  person  to  whom  he 
may  have  made  it,  need  not  be  mentioned,  if  it  was  not  necessary  to  enable 
him  to  know  to  what  remark  his  attention  was  directed. 

The  statute  allowing  the  relative  of  a  person  killed,  to  recover  damages  there- 
for, it  will  be  no  impeachment  of  a  witness,  that  he  as  father  of  the 
deceased,  had  attempted  by  negotiation  to  recover  compensation  from  the 
author  of  the  death. 

Whether  a  homicide  was  justifiable  under  the  statutes  is  to  be  determined  by 
the  jury  from  their  conviction  whether  there  was  reasonable  ground  for  the 
accused  to  apprehend  great  personal  injury,  and  not  from  the  fact  that  the 
accused  did  in  fact  entertain  such  apprehension. 

Whether  a  homicide  is  excusable  or  not,  must  depend  in  a  great  measure  upon 
the  nature  of  the  weapon  used  and  the  manner  in  which  it  was  used.  Killing 
by  intentionally  firing  a  pistol  into  a  crowd  can  not  be  said  to  be  by  accident 
or  misfortune.  To  constitute  murder  there  must  be  an  intention  to  kill,  in 
all  cases,  except  where  the  perpetrator  is  at  the  moment  engaged  in  commit- 
ting a  felony. 

Any  killing  without  a  design  to  effect  death  unless  it  is  justifiable  or  ex- 
cusable is  manslaughter  only. 

Implied  malice,  constituting  killing,  without  an  intention  to  kill,  murder,  is 
not  recognized  in  our  law. 

Recent  provocation,  and  the  fact  that  the  passions  have  not  had  time  to  cool, 
do  not  under  our  statute  mitigate  a  killing  with  a  design  to  effect  death  from 
murder  to  manslaughter.  Such  killing  is  murder,  whether  the  design  to 
effect  death  was  formed  on  the  instant  or  had  been  previously  entertained. 

The  intention  to  take  life  constitutes,  under  our  statute,  the  main  distinction 
between  murder  and  manslaughter. 

THE  prisoner  was  indicted  with  one  Nesbitt,  for  the  murder 


NEW  YORK,  MARCH,  1847. 


The  People  v.  Austin. 


of  Timothy  Shea,  on  the  28th  of  September,  1848,  by  firing  a 
pistol  at  him. 

The  indictment  contained  two  counts,  one  charging  that  the 
pistol  was  fired  by  Austin  by  the  aid  and  procurement  of  Nes- 
bitt,  and  the  other  that  the  firing  was  by  Nesbitt,  and  that 
Austin  aided  and  encouraged. 

After  the  testimony  for  the  prosecution  closed,  which  tended 
to  show  that  Austin  had  fired  the  pistol,  J.  Graham,  for  the 
defence,  moved  that  the  prosecution  be  put  to  their  election  on 
which  count  they  intended  to  ask  for  the  conviction  of  the  pri- 
soner. He  insisted  that  the  prosecution,  having  now  got  in  all 
its  testimony,  was  able  definitely  to  inform  the  prisoner  of  the 
precise  nature  of  the  charge  of  which  they  claimed  him  to  be 
guilty,  and  that  it  was  his  right  to  know,  so  as  to  determine 
how  to  shape  his  defence. 

H.  G.  Wheaton  (who  appeared  instead  of  the  attorney  gene- 
ral) insisted  that  the  right  to  compel  an  election  existed  only 
when  the  indictment  contained  distinct  charges,  and  not  where, 
as  in  this  case,  it  contained  only  charges  connected  with  the 
same  transaction. 

EDMONDS,  J.  —  That  is  undoubtedly  the  true  rule  where  the 
two  offences  charged  form  parts  of  one  transaction,  yet  are  of 
such  a  nature  that  the  defendant  may  be  found  guilty  of  both 
The  prosecutor  will  not  be  called  on  to  elect  upon  which  charge 
he  will  proceed,  for  in  such  case  the  joinder  of  counts  can  not 
prejudice  the  defendants,  which  is  the  only  ground  on  which 
this  application  to  the  discretion  of  the  court  can  be  founded. 
The  right  of  election  is  confined  to  cases  where  the  indictment 
contains  charges  which  are  actually  distinct  and  grow  out  of 
different  transactions.  Thus  the  prosecution  will  not  be  com- 
pelled to  elect  on  an  indictment  charging  both  larceny  and 
receiving  stolen  goods,  where  it  appears  by  the  indictment 
that  the  charges  relate  to  the  same  transaction  modified  to 
meet  the  proof,  nor  when  several  counts  are  inserted  in  an 
indictment  solely  for  the  purpose  of  meeting  the  evidence  as  it 


156 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v.  Austin. 


may  transpire  on  the  trial,  the  charges  being  substantially  fof 
the  same  offence.  Such  is  this  case,  and  the  impropriety  of 
compelling  an  election  here  is  very  apparent.  If  the  prosecu- 
tion should  elect  to  go  on  the  count  that  charges  Austin  with 
having  fired  the  pistol,  and  it  should  turn  out  on  the  trial  that 
it  was  in  fact  fired  by  Nesbitt,  but  by  the  order  and  procure- 
ment of  Austin,  Austin  would  be  guilty  of  the  murder,  yet 
could  not  be  convicted  because  the  prosecutor  had  been  com- 
pelled to  elect,  and  in  a  necessary  ignorance  of  the  facts  had 
elected  the  wrong  count. 

The  prisoner  can  not  be  embarrassed  by  being  tried  on  both 
counts,  while  the  prosecution  may  be  much  embarrassed  and 
indeed  entirely  thwarted  by  being  compelled  to  elect. 

The  motion  must  be  denied. 

John  Shea,  the  father  of  the  deceased,  was  examined  as  a 
witness  on  the  part  of  the  prosecution,  and  on  his  cross-exam- 
ination was  asked  whether  he  had  not  offered  to  the  prisoner 
or  some  of  his  friends  to  leave  the  state  and  refuse  to  testify  in 
the  case  for  a  suitable  remuneration.  To  which  he  had 

answered,  not  exactly  that,  but and  was  then  proceeding 

to  detail  what  he  had  said  in  that  regard,  when  he  was  stopped 
by  the  prisoner's  counsel,  and  told  that  they  had  got  all  the 
answer  that  they  wanted. 

On  his  reexamination  by  the  prosecution  he  was  asked  what 
it  was  he  had  said  in  that  regard. 

D.  Graham,  for  prisoner,  objected. 

EDMONDS,  J.  —  But  you  have  yourselves  introduced  the  sub- 
ject and  have  obtained  only  part  of  an  answer.  The  whole  of 
it  ought  to  be  got  out.  Besides,  you  have  an  answer  from 
which  you  may  call  on  the  jury  to  infer  corruption  on  the  part 
of  the  witness,  while  the  matter  may  be  susceptible  of  a  per- 
feet  explanation.  It  will  be  right  to  have  it  all. 

Being  examined  on  that  point  the  witness  detailed  two 
interviews  with  one  who  acted  as  an  agent  of  the  prisoner  in 
conducting  his  defence,  in  which,  as  he  alleged,  an  offer  had 


NEW  YORK,  MARCH,  1847.  157 

The  People  v.  Austin. 

been  made  to  him  of  some  money  if  he  would  remove  from  the 
state. 

After  the  prisoner  had  entered  upon  his  defence,  his  counsel 
offered  to  prove  several  acts  of  this  witness  going  to  show  a 
desire  to  obtain  from  the  prisoner  pecuniary  satisfaction  for  the 
injury  which  he  had  received  by  the  death  of  his  son,  and  what 
had  taken  place  between  him  and  the  prisoner's  agent  in  that 
respect. 

Wheatoii,  for  the  prosecution,  objected  that  the  examination 
of  the  witness  on  this  subject  had  been  to  a  matter  entirely 
collateral  to  the  main  issue,  and  that  the  defence  were  there- 
fore bound  by  his  answers  and  could  not  contradict  them. 

D.  Graham,  for  the  prisoner,  contended,  first,  that  it  was  not 
collateral  matter  so  that  the  defence  was  bound  by  the  answer 
and,  second,  that  the  testimony  was  proper,  independent  of 
what  the  witness  had  said  on  his  examination,  as  it  might  tend 
to  show  him  governed  by  corrupt  or  revengeful  feelings,  and  it 
would  enable  the  jury  to  judge  what  credit  to  give  him  when 
they  should  learn  that  he  had  attempted  to  make  money  out  of 
a  transaction  which  had  resulted  in  the  death  of  his  son. 

Wheaton,  in  reply,  said  that  since  our  statute  of  1847,  which 
had  given  to  the  relatives  of  a  person  killed  under  circumstan- 
ces which  would  constitute  a  trespass,  a  right  to  recover 
damages  for  the  injury  sustained  by  the  loss  of  the  deceased,  it 
could  be  no  impeachment  to  the  credit  of  a  witness  to  seek  to 
avail  himself  of  the  benefit  of  the  statute. 

EDMONDS,  J.  —  I  was  not  aware  that  the  statute  gave  the 
remedy  for  damages  in  such  cases  as  this.  I  supposed  it  was 
confined  to  cases  of  persons  traveling  in  public  conveyances.  It 
grew  out  of  injuries  on  railroads  and  steam  boat  accidents,  but 
I  see  that  it  extends  to  all  cases  where  death  is  caused  by  the 
wrongful  act,  neglect  or  default  of  any  person  or  corporation, 
anr  the  party  injured,  if  living,  might  have  maintained  an 


158  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Austin. 

action  for  the  injury.  And  it  is  worthy  of  note  to  observe  this 
return  to  a  law  which  once  prevailed  among  our  ancestors,  but 
which  has  been  exploded  for  several  hundred  years.  The 
Weregild  of  our  Saxon  ancestors  was  the  fine  set  on  a  person's 
head  for  the  murder  of  a  man.  Tacitus  speaks  of  it  as  having 
been  found  by  the  Romans  to  exist  among  the  Northern  Ger- 
mans, from  whom  it  was  doubtless  brought  into  England  by 
the  Saxons  while  pagans,  and  continued  even  after  the  Nor- 
man conquest  until  the  introduction  of  the  Christian  religion, 
when  it  fell  into  disuse,  it  being  regarded  as  contradictory  to 
the  divine  law.  Some  years  since  T  found  the  same  Jaw  in 
existence  among  the  northern  native  tribes  on  our  continent. 

I  once  witnessed  on  the  island  of  Michilimackinac  the  inter- 
esting ceremony  of  the  "  Weregild"  performed  among  some 
Indians  inhabiting  the  borders  of  Lake  Superior,  and  I  had 
several  times  occasion  in  my  then  official  capacity  in  settling 
claims  against  Indians,  along  that  region  of  country  from  Lake 
Winnebago  to  Lake  Superior,  to  make  similar  allowances 
which  I  found  was  in  pursuance  of  a  well  settled  custom  among 
them.  But  this  is  a  digression,  perhaps  not  ail  unnatural  one. 
It  is  enough  for  the  question  now  before  me  to  know  that  such 
a  law  now  prevails  among  us  also,  so  that  it  could  in  no 
respect  affect  the  credit  of  this  witness  that  he  was  seeking  to 
avail  himself  of  its  advantages.  Yet  if  there  was  no  such 
statute,  this  question  has  been  settled  by  our  court  in  11  Wend. 
(The  People  v.  Genung.)  That  was  an  indictment  for  false  pre- 
tences, and  the  defendant  offered  to  show  that  during  the  sitting 
of  the  court  the  prosecutor  had  offered  to  the  prisoner  that  if  he 
would  settle  the  subject  matter  of  the  indictment  he  would 
leave  the  court  and  not  appear  against  him.  The  testimony 
was  excluded  and  the  supreme  court  sustained  the  decision  on 
the  ground  that  if  the  fact  had  been  proved  it  could  legiti- 
mately have  had  no  influence  with  the  jury,  for  it  did  not  tend 
in  the  least  degree  to  impeach  the  testimony  of  the  witness  or 
to  show  that  his  narration  was  not  true.  So  far  then  as  to  one 
view  in  which  this  evidence  is  offered,  namely,  as  independent 
of  what  the  witness  may  have  testified  on  the  subject,  the  testi 


NEW  YORK,  MARCH,   1847. 


The  People  v.  Austin. 


mony  would  not  be  proper.  But  when  offered  to  contradict 
his  testimony,  it  has  a  different  aspect.  In  the  view  which  I 
have  already  stated,  the  question  put  on  the  cross-examination 
of  this  witness  might  have  been  objected  to  and  perhaps  exclu- 
ded. But  it  was  asked  and  answered  without  objection  and  the 
inquiry  was  fully  gone  into  on  both  sides  in  order  to  ascertain 
the  feelings  with  which  he  testified.  That  surely  can  not  be 
called  collateral,  for  any  inquiry  which  is  allowed  having  that 
object  in  view  is  pertinent  and  relevant  to  the  main  issue.  In 
regard  to  such  matters  it  is  always  open  to  contradict  what  the 
witness  himself  has  said  on  the  subject.  With  that  view  and 
to  that  extent  the  inquiry  will  now  be  allowed. 

The  witness,  John  Shea,  on  his  cross-examination,  had  been 
asked  whether  on  the  evening  of  the  affray  and  immediately 
after  his  son  had  been  shot,  he  had  said  to  two  men  in  his 
basement  that  he  did  not  know  who  had  fired  the  pistol?  To 
which  he  had  testified  that  he  had  not  said  so,  but  a  good  many 
persons  had  spoken  to  him  that  evening,  that  he  did  not  know 
whether  they  were  friends  or  enemies  and  had  not  been  always 
particular  as  to  what  he  did  say. 

For  the  defence,  a  police  officer  was  introduced  who  said  he 
entered  the  basement  directly  upon  the  first  alarm  and  saw  the 
dead  body  lying  on  the  floor,  and  he  asked  some  questions  of  the 
witness  Shea.  His  answers  being  offered  in  evidence, 

Wheaton,  for  the  prosecution,  objected,  because  the  proper 
foundation  had  not  been  laid,  as  the  attention  of  the  witness 
had  not  been  particularly  called  to  the  police  officer  by  name. 

EDMONDS,  J.  —  His  attention  was  challenged  to  the  particular 
circumstances  and  occasion,  to  every  thing,  indeed,  except  the 
name  of  the  person  to  whom  it  is  now  alleged  he  made  the 
declarations  offered  in  evidence,  so  that  he  has  had  a  full 
opportunity  of  recollecting  and  explaining  what  he  has  for- 
merly said.  The  main  thing  is  first  to  ask  him,  whether  or  no 
he  has  said  or  declared  that  which  is  intended  to  be  proved. 
All  that  has  been  done  in  this  case,  and  the  only  omission  has 


160  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t>.  Austin. 

been  the  name  of  the  person  to  whom  the  remark  was  made, 
and  that  person  an  entire  stranger  to  the  witness.  That  name 
was  not  necessary  to  enable  the  witness  to  know  to  what  remark 
his  attention  was  directed.  The  time,  place  and  circumstances 
were  all  specifically  mentioned,  and  they  were  enough  to  give 
him  the  required  opportunity  of  explanation,  having  that,  this 
inquiry  now  becomes  proper. 

The  evidence  bearing  on  the  offence  charged  in  the  indict- 
ment went  to  show,  that  on  the  evening  in  question  the  prisoner, 
with  three  of  his  companions,  sallied  out  into  the  streets  on  a 
frolic,  and  after  visiting  five  or  six  drinking  houses  entered  one 
in  Leonard  street,  next  door  to  the  residence  of  the  deceased, 
and  on  coming  out  passed  the  door  of  the  basement  occupied 
by  the  deceased's  mother  as  a  porter  house,  and  in  which  the 
deceased,  two  of  his  brothers,  and  a  sailor  were  then  engaged 
singing  and  carousing.  As  Austin  was  passing  the  door  one 
of  the  inmates  came  out  and  invited  him  to  go  in  and  hear  the 
singing,  which  he  refused  to  do.  After  refusing  repeated  invi- 
tations, he  was  taken  by  the  collar  and  dragged  into  the  base- 
ment. The  door  was  then  shut  upon  him  and  he  was  repeatedly 
urged  to  sing  or  to  drink,  but  refused.  One  of  his  companions, 
the  other  defendant,  Nesbitt,  followed  him  into  the  basement 
and  attempted  to  fasten  the  door  open.  A  row  then  began,  in 
the  course  of  which  Nesbitt  fled  from  the  room,  and  the  brother 
of  the  deceased  threw  a  tumbler  and  a  pitcher  at  Austin,  and 
struck  him  a  severe  blow  on  the  forehead  with  a  decanter. 
Austin  retreated  from  the  basement;  he  was  followed  by  the 
sailor,  and  struck  a  blow  with  a  chair.  At  about  this  time, 
but  whether  before  or  after  the  blow  with  the  chair  was  not 
ascertained,  some  one  fired  twice  into  the  basement  from  a  six 
barreled  revolving  pistol.  One  of  the  balls  took  effect  upon 
the  deceased,  who  was  then  advancing  with  a  chair  uplifted 
towards  the  door  through  which  Austin  had  retreated,  and  who 
died  almost  immediately,  exclaiming  as  he  fell  and  expired, 
"  Father,  I  am  shot."  At  about  the  same  moment,  but  whether 
before  or  after  the  firing,  the  light  in  the  basement  was  extin- 
guished. It  was  from  a  lamp  hanging  over  the  bar,  so  low 


NEW  YORK,  MARCH,  1S47. 


The  People  v.  Austin. 


that  Patrick  Shea,  who  was  standing  by  the  bar,  could  easily 
extinguish  it  with  a  breath.  After  the  firing,  the  prisoner 
retreated  towards  the  police  station  house,  distant  about  100 
feet  from  the  scene  of  the  affray.  On  the  way  which  he  had 
passed  a  pistol  was  afterwards  found.  Austin  repaired  directly 
to  the  station  house,  where  he  was  met  by  the  captain  of  the 
police,  who,  observing  him  to  be  very  bloody,  ordered  him  to 
be  taken  care  of  and  a  physician  to  be  sent  for.  On  examining 
him  it  was  found  that  he  had  received  a  very  severe  wound  in 
the  forehead  with  some  sharp  instrument  which  had  cut  through 
the  rim  of  his  hat  and  which  stupefied  him,  a  hole  was  cut 
through  one  cheek,  as  if  by  a  stab  from  an  oyster  knife,  and 
various  bruises  on  his  head  and  body,  showing  that  he  had 
received  at  least  nine  blows.  He  was  too  ill  from  these  wounds 
to  be  removed  from  the  station  house  for  several  days,  and 
several  weeks  elapsed  before  he  arose  from  his  bed. 

There  was  much  contradictory  evidence  in  the  case.  The 
father  of  the  deceased  swore  positively  to  his  having  seen  the 
prisoner  firing  the  pistol  from  the  sidewalk,  after  the  affray  was 
over,  while  other  witnesses  testified  that  he  was  an  habitual 
drunkard;  that  he  had  gone  to  bed  very  drunk  that  afternoon, 
and  was  asleep  in  another  room  when  the  affray  began,  and 
was  just  rising  from  his  bed  as  his  son  expired. 

It  was  also  proved  that  the  family  of  the  Sheas  was  very 
debased,  the  daughter  being  a  strumpet,  the  mother  sharing 
with  her  the  wages  of  her  prostitution;  the  deceased  had  been 
a  convict  in  the  state  prison,  and  his  brother,  one  of  the  wit- 
nesses, was  then  in  confinement  on  a  charge  of  stealing,  and 
that  the  house  they  kept  had  frequently  attracted  the  notice  of 
the  police  for  its  riotous  and  disorderly  character. 

D.  and  J.  Graham,  of  counsel  for  the  prisoner,  made  the 
following  points: 

I.  In  order  to  make  homicide,  by  an  act  imminently  danger- 
ous to  others,  murder,  it  must  be  occasioned  by  an  act  committed 
when  the  mind  is  in  the  same  mood  as  would  be  necessary  to 
make  the  act  murder  if  it  was  committed  upon  a  particular 

VOL.  I.  21 


162  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Austin. 

individual,  and  there  must  be  a  preintention  to  take  human 
life,  or  else  to  do  the  act  which  must  necessarily  or  may  result 
in  the  death  of  some  one. 

II  If  the  jury  believe  that  the  defendant  fired  the  pistol, 
smarting  under  a  provocation  so  recent  as  not  to  be  under  the 
influence  of  reason,  it  is  not  murder. 

III.  If  the  jury  should  believe  the  statement  of  John  Shea, 
as  to  the  door's  being  opened  after  Austin  was  put  out,  and 
the    pistol    discharged    into    the   basement,    it  would   not  be 
murder  unless  the  time  that  elapsed  between  the  defendant's 
becoming  disconnected  from  the  violence  of  the  inmates  of  the 
basement  and  the  firing  of  the  pistol  was  a  reasonable  time  for 
the  cooling  of  human  passion. 

IV.  If  the  jury  believe  that  the  pistol  was  fired  from  the 
street,  i.  e.  outside  of  the  basement,  and  that  the  defendant  was 
pursued  there  by  the  violence  of  the   inmates  of  the  basement, 
and  that  there  was  reasonable  ground  for  supposing  that  great 
personal  injury  would  be  done  to  him,  and  imminent  danger  of 
its  being  accomplished,  it  would  be  justifiable  in  law. 

V.  If  the  judgment  of  the  defendant  was  so  impaired  by  the 
violence  of  the  injuries  inflicted  upon  him,  that  the  act  of  firing 
the  pistol,  though  not  necessary  to  guard  himself  against  further 
injury,  was  rather  the  result  of  instinct  than  judgment  or  re- 
venge, the  act  would  be  justifiable  in  law. 

VI.  Where  the  loss  of  reason  or  deprivation  of  consciousness 
is  the  direct  result  of  an   injury,  and  not   attributable  to  mere 
passion,  an    act   committed  while  in   such   a  state,  is  not  an 
offence. 

VII.  The  basement  of  the  Sheas  being  a  public  bar  room,  it 
was  no  trespass  in  the  defendant  to  enter  it. 

VIII.  If  the  Sheas  had  the  right  to  eject  the  defendant  from 
the  basement,  owing  to  his  misconduct,  they  were  only  entitled 
to  use  the  kind  of  violence  calculated  to  attain  the  end.  Throw- 
ing a  tumbler  or  decanter  would  not  be  justifiable,   and  would 
make  those  resorting  to  them,  trespassers. 

IX.  If  the  Sheas  resorted  to  excessive  or  unnecessary  vio- 
lence, for  the  purpose  of  ejecting  the  defendant  from  the  base 


NEW  YORK.  JULY,  1847. 


The  People  v.  Austin. 


ment,  they  became  trespassers  in  so  doing,  and  the  defendant 
would  have  the  right  to  act  in  self-defence. 

X.  If  Austin  discharged  the  pistol  under  an  hone«t  suppo- 
sition that  his  life  was  in  danger,  or  that  some  great  personal 
injury  was  about  to  be  done  to  him,  he  is  not  guilty  of  an  offence. 

XI.  If  the  defendant,  though  in  no  danger  of  serious  bodily 
harm,  through  fear,  alarm  or  cowardice,  discharged  the  pistol 
at  the  deceased,  or  into  the  basement,  under  the  impression  that 
great  bodily  injury  was  about  to  be  inflicted  upon  him,  it  is  not 
an  offence. 

J.  McKeon  (district  attorney),  and  Wheaton,  for  the  prose- 
cution, made  the  following  points: 

1.  If  the  jury  believe  the  prisoner  armed  himself  with  this 
deadly  weapon,  with  an  intent  to  use  it  against  human  life,  if 
he  should  get  into  an  affray,  and  was  induced  or  encouraged  to 
provoke  the  affray  in  question  or  unnecessarily  to  continue  it 
after  it  had  been  commenced  by  others,  by  the  fact  of  his  bf  ing 
thus  armed,  and  did  use  it  against  the  life  of  Timothy  Shea,  in 
the  manner  proved  by  the  witness,  he  is  guilty  of  murder. 

2.  That   if  the  jury  believe    the    prisoner  was  so  far  self- 
possessed   as  to  be  able  to  restrain  his  passion  while  in  the 
basement  receiving  the  blows,  although  his  weapon  was  then 
at  hand,  and  omitted  to  use  it  till  he  had  got  out  of  the  base- 
ment and  out  of  the  more  immediate  view  of  the  inmates,  and 
then  used  it  as  proved  by  the  witnesses,  he  has  exhibited  all 
the  deliberation  which  the  law  requires  to  be  guilty  of  murder. 

EDMONDS,  J.,  in  charging  the  jury,  said,  that  the  first  question 
for  them  to  determine  was,  whether  the  prisoner  had  fired  the 
pistol.  This  was  sworn  to  positively  by  two  witnesses:  Shea, 
the  father,  and  Clara  King,  a  girl  of  the  town,  who  was  passing 
at  the  moment.  The  testimony  of  the  father  was  not  to  be 
relied  upon.  His  character,  his  intoxication,  his  strong  feelings 
and  the  falsehoods  which  had  been  proved  against  him,  forbid 
the  idea  of  giving  much  credit  to  him.  The  testimony  of  the 
girl,  however,  had  not  been  impeached,  but  had  been  corrobo- 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  t.  Austin. 


rated  by  several  independent  circumstances  in  the  case,  and 
particularly  by  the  facts  that  all  the  witnesses  unite  in  saying, 
the  firing  was  from  the  very  spot,  where  all  agree  that  the 
prisoner  was  at  the  time;  that  the  pistol  when  found  was 
bloody,  and  that  he  alone  of  all  the  party  was  bleeding;  that 
he  had  an  inducement  to  do  it,  whether  from  motives  of  revenge 
or  in  self-defence;  that  the  direction  of  both  shots  was  from 
where  Austin  was,  back  upon  those  who  had  beat  him;  that 
the  pistol  was  found  at  a  spot  which  he  had  just  passed;  that 
he  who  fired  the  pistol  wore  a  white  hat,  and  that  the  prisoner 
alone  had  such  a  hat  that  evening.  From  these  considerations, 
the  jury  must  determine  whether  it  was  not  the  prisoner  who 
fired  the  pistol,  and  in  determining  it,  they  must  bear  in  mind 
that  the  evidence  to  satisfy  them  must  exclude,  to  a  moral  cer- 
tainty, every  hypothesis  but  that  of  guilt,  that  the  conviction 
of  guilt  must  flow  naturally  from  the  facts  proved  and  not  by  a 
forced  or  strained  construction,  and  be  consistent  with  all  the 
facts,  for  if  any  one  fact  is  utterly  inconsistent  with  that  con- 
clusion it  can  not  follow;  and  that,  in  case  of  doubt,  it  is  safest 
to  acquit,  for  the  protection  of  innocence  has  an  equal  claim 
upon  the  administration  of  justice  with  the  punishment  of  guilt. 

If  upon  this  question,  the  conclusion  of  the  jury  should  be 
adverse  to  the  prisoner,  the  next  inquiry  would  be  into  the 
nature  and  quality  of  the  act  which  should  be  thus  established 
against  him,  and  whether  the  homicide  was  justifiable  or  excu- 
sable, or  was  murder  or  manslaughter. 

The  homicide  would  be  justifiable  under  our  law,  only  in 
case  it  was  committed  by  the  prisoner  when  there  was  reason- 
able grounds  to  apprehend  a  design  to  do  him  some  great 
personal  injury,  and  there  was  imminent  danger  of  such  design 
being  accomplished.  But  of  this  the  jury  were  to  be  judges, 
not  the  prisoner,  and  it  was  for  them  to  say  from  all  the  cir- 
cumstances proved  before  them,  whether  there  was  reasonable 
ground  for  such  apprehension,  and  whether  there  was,  at  the 
moment  the  fatal  shot  was  fired,  imminent  danger  that  some 
great  personal  injury  would  have  been  done  to  the  prisoner. 

This  would  depend  mainly  upon  the  facts  when  and  from 


NEW  YORK,  JCJLY,  1S47. 


The  People  v.  Austin. 


•what  position  the  pistol  was  fired?  If  fired  after  the  prisoner 
has  escaped  from  the  party  in  the  house  and  after  he  had 
reached  the  sidewalk,  it  may  have  flowed  from  a  spirit  of  re- 
venge for  the  injuries  under  which  he  was  smarting. 

But  if  he  fired  before  he  had  extricated  himself  from  the 
party,  who  had  thus  forcibly  drawn  him  into  the  building,  and 
had  there  displayed  towards  him  such  unjustifiable  violence,  he 
might  at  the  moment  have  very  reasonably  apprehended  farther 
personal  injury  and  might  be  justifiable  in  using  the  means  at 
hand  to  protect  himself  from  it. 

There  was,  however,  another  view  of  the  case  in  which  the 
prisoner  might  be  justified,  even  if  he  had  fired  the  pistol  after 
he  had  left  the  basement.  One  of  the  witnesses  had  testified 
that  the  prisoner  had  been  followed  from  the  basement  by  one 
of  the  party  inside,  and  had  been  slruck  with  a  chair  while 
ascending  the  steps  on  his  retreat.  If  this  were  so,  then  the 
apprehension  of  personal  injury  would  not  cease  with  the  pri- 
soner's leaving  the  basement,  and  the  imminent  danger  in 
which  he  had  been  placed  might  have  continued  up  to  the 
moment  of  firing  the  pistol,  and  thus  he  be  justified  in  firing  it. 

If  the  jury  were  not  satisfied  that  it  was  justifiable,  they  were 
next  to  inquire  whether  it  was  excusable.  It  is  so  under  our 
law  when  committed  by  accident  or  misfortune,  in  the  heat  of 
a  passion  upon  a  sudden  and  sufficient  provocation,  or  upon  a 
sudden  combat  without  any  dangerous  weapon  being  used.  The 
nature  of  the  weapon  used,  and  the  manner  in  which  it  was 
used,  must  be  mainly  instrumental  in  determining  this  question. 
Thus  if,  in  the  heat  of  passion,  upon  sufficient  provocation  or 
upon  a  sudden  combat,  a  man  had  used  his  walking  stick,  or  a 
butcher  in  his  stall  had  used  his  knife  that  lay  near  him,  or  a 
cooper  used  the  adze  with  which  he  was  then  at  work,  and 
had  given  a  blow  which  was  fatal,  but  without  any  intention 
to  take  life,  the  homicide  might  be  excusable.  But  that  could 
hardly  be  where  the  weapon  used  was  of  a  dangerous  charac- 
ter, constructed  solely  for  the  purpose  of  taking  life  and  which 
could  scarcely  be  fired  off  without  hazarding  it.  If  in  the 
melee  the  ;  nsoner  had  used  the  pistol  as  he  might  any  other 


166  DECISIONS  IN  CRIMINAI    CASES. 

The  People  v.  Austin. 

hard  substance  found  at  the  instant  in  his  pocket,  by  striking  a 
blow  with  it  calculated  rather  to  w*und  than  to  kill,  but  had 
killed,  it  might  be  attributed  to  accident  or  misfortune.  But 
that  could  not  with  propriety  be  predicated  of  the  act  of  inten- 
tionally firing  the  pistol  and  unless  such  firing  was  justifiable, 
it  was  either  murder  or  manslaughter. 

Whether  the  act  was  murder  or  manslaughter  under  our  stat- 
ute, depended  entirely  upon  the  existence  of  an  intention  to  kill 
either  some  particular  person,  or  generally  some  one  of  a  num- 
ber of  persons  against  whom  in  a  mass  the  fatal  act  is  perpe- 
trated. There  is  only  one  homicide  known  to  our  law  which 
becomes  murder  in  the  absence  of  an  intention  to  effect  death, 
and  that  is  when  the  act  is  perpetrated  by  one  then  engaged  in 
committing  a  felony.  Except  in  that  one  case,  no  homicide  is 
murder  without  an  intention  to  kill  and  with  such  an  intention, 
every  homicide,  with  the  single  exception  already  mentioned, 
unless  it  be  justifiable,  is  murder,  whether  the  intention  is 
formed  on  the  instant  or  has  long  been  entertained. 

Such  intention  may  be  inferred  from  the  act  itself,  for  it  may 
be  one  which  of  itself  plainly  indicates  a  heart  regardless  of 
social  duty  and  fatally  bent  on  mischief,  and  men  are  to  be 
presumed  to  intend  the  natural  and  inevitable  consequences  of 
the  acts  which  they  willfully  perform,  but  unless  there  be  such 
an  intention,  the  act  can  not  be  more  than  manslaughter. 

It  would  readily  be  perceived  that  this  view  of  the  statute 
had  entirely  superseded  many  of  the  rules  of  the  law  of  homi- 
cide as  it  existed  in  England  and  which  had  been  quoted  on 
this  occasion,  and  among  them  the  whole  doctrine  of  implied 
malice  and  the  power  of  recent  provocation  to  reduce  the  act 
from  murder  to  manslaughter. 

The  English  law  provided  very  slight  punishment  for  man- 
slaughter, sometimes  as  low  as  the  fine  of  a  shilling  and  never 
beyond  a  year's  imprisonment.  To  remove  from  the  operation 
of  so  inadequate  a  penalty  acts  of  peculiar  barbarity,  such  as 
that  of  the  schoolmaster  who  whipped  a  scholar  until  it  died, 
and  that  of  the  master  chimney-sweeper  whose  boy  stuck  fast 
in  the  chimney  and  was  killed  by  the  violent  manner  in  which 


NEW  YORK,  JULY,    1847.  157 


The  People  v.  Austin. 


he  was  pulled  from  the  place,  the  English  courts  adopted  the 
principle  of  implying  malice,  where  there  was  in  fact  no  pre- 
meditated design  to  take  life.  On  the  other  hand,  lest  such  a 
principle  should  extend  too  far,  they  adopted  another  principle 
which  gave  to  recent  provocation,  and  the  fact  that  the  pas- 
sions had  not  time  to  cool,  the  power  of  modifying  the  acts 
from  murder  to  manslaughter. 

All  this  had  been  done  away  by  our  statute.  If  the  homicide 
had  been  perpetrated  without  an  intention  to  kill  it  would  be  man- 
slaughter and  no  more,  except  in  the  single  case  of  its  perpe- 
tration by  one  engaged  in  committing  a  felony.  But  if 
perpetrated  with  an  intention  to  kill,  no  matter  how  recent  the 
provocation  or  how  high  the  passions,  it  was  murder.  An  act 
of  homicide  perpetrated  with  a  premeditated  design  to  effect 
death,  though  in  the  very  highest  flight  of  passion,  and  spring- 
ing from  even  an  existing  provocation,  can  find  no  resting 
place  in  our  statute  except  under  the  definition  of  murder  or 
justifiable  homicide,  and  the  intention  to  kill  being  established, 
there  is  no  degree  or  description  of  manslaughter  in  this  stat- 
ute which  can  embrace  it. 

That  this  is  the  intention  of  the  statute  is  manifest  not  only 
from  a  careful  perusal  of  all  its  enactments  relative  to  homi- 
cide, but  also  from  the  recommendations  of  the  revisors.  They 
proposed  that  murder  should  include  a  homicide  when  perpe- 
trated from  a  premeditated  design  to  do  some  great  bodily 
injury,  although  without  a  design  to  effect  death,  thus  recog- 
nizing and  adopting  the  principle  of  implied  malice  and 
defending  it  on  the  ground  that  the  transaction  would  be  such 
as  would  ordinarily  lead  to  the  result  of  taking  life.  But  the 
legislature  refused  to  adopt  the  suggestion  and  enacted  a 
section,  which,  in  the  language  of  the  revisors  was  "  founded 
on  the  great  principle  that  to  constitute  murder  there  should  be 
an  express  design  to  take  life  or  such  circumstances  as  to 
induce  a  very  strong  presumption  of  such  a  design." 

This  view  of  the  law  will  commend  itself  to  our  favorable 
regard,  not  merely  because  it  confines  the  crime  of  murder 
within  its  legitimate  bounds  of  a  premeditated  design  to  take 


163  DECISIONS  IN  CRIMINAL  CASES. 

The  People  i>.  Austin. 

life,  but  because  it  effectually  destroys  the  doctrine  of  allowing 
sudden  provocation  and  heat  of  passion  to  mitigate  the  offence, 
a  doctrine  most  dangerous  in  its  operation,  because  it  tolerates 
the  practice  of  carrying  arms,  and  takes  from  the  sudden  use  of 
them  the  consequences  that  ought  justly  to  follow.  No  man 
can  under  our  laws  go  habitually  armed  and  in  an  affray  use 
those  arms  with  an  intent  to  kill,  without  incurring  the  hazard 
of  a  conviction  for  murder,  and  no  violence  of  provocation,  no 
height  of  passion  can  mitigate  or  extenuate  the  offence.  It 
will  be  murder  if  there  is  an  intention  to  kill,  unless  self 
defence  demands  the  sacrifice.  The  practice  out  of  which  this 
case  has  sprung  is  too  pernicious  to  be  tolerated.  No  life 
would  have  been  taken,  if  the  person  who  fired  the  pistol, 
whoever  he  might  have  been,  had  not  gone  into  the  affray  with 
so  deadly  a  weapon.  The  same  remark  is  applicable  to  the 
last  case  tried  in  this  court  and  the  sooner  this  law  becomes 
well  known,  and  understood,  and  rigidly  enforced,  the  better; 
for  far  better  the  land  though  stricken  with  poverty,  where  the 
unseen  majesty  of  the  law  affords  its  sure  protection  to  all,  and 
where  the  atmosphere  of  its  supremacy  pervades  every  tene- 
ment however  humble,  than  that  where  gold  may  be  gathered 
at  every  footstep,  but  where  every  man  is  armed  to  the  death 
against  his  fellow,  where  every  breath  is  drawn  amid  the 
rattling  of  armor,  and  every  pulsation  beats  with  the  appre- 
hension of  instant  conflict. 

The  inquiry,  therefore,  would  be,  was  there  a  design  to  effect 
death?  For  if  there  was,  however  recent  in  birth,  the  offence 
was  murder,  but  if  there  was  an  intention  to  wound  only  —  a 
design  to  do  some  great  bodily  harm  and  not  to  kill,  it  was 
manslaughter  and  no  more. 

The  prisoner  was  acquitted. 


NEW  YORK,  DECEMBER,   1848. 


SUPREME  COURT.     New  York  Special  Terra,  December,  1848. 
Before  Edmonds,  Justice. 

In  the  matter  of  JOSEPH  BELT,  an  alleged  fugitive  from  service 
in  the  state  of  Maryland. 

In  a  proceeding  on  habeas  corpus  under  the  Revised  Statutes,  the  averment  of 
a  person  claimed  as  a  fugitive  from  service  that  he  is  a  freeman,  is  a  suf 
ficient  answer  to  the  allegation  by  the  claimant  that  such  person  is  his  slave, 
and  a  demurrer  to  such  answer  on  the  ground  that  it  is  argumentative  and 
evasive  will  be  overruled. 

In  submitting  proof  of  the  claim  to  the  alleged  fugitive,  the  contemporaneous 
acts  of  the  fugitive  and  the  claimant  during  the  period  when  the  relation  of 
master  and  slave  is  said  to  have  existed  between  them,  may  be  shown  by  the 
claimant. 

The  general  rule  of  evidence  in  regard  to  the  proof  of  the  laws  of  the  various 
states  of  the  union,  stated  in  Greenleaf 's  Evidence,  $  489,  has  not  been 
adopted  by  the  courts  of  the  state  of  New  York,  and  is  not  the  rule  therein, 
excepting  so  far  as  it  is  enacted  by  the  act  passed  April  12,  1848,  entitled 
"an  act  relative  to  the  proof  of  the  Statute  and  Common  Law  of  other 
States,  &c."  (p.  442). 

The  provision  of  the  new  Code,  that  no  person  shall  be  excluded  as  a  witness 
by  reason  of  his  interest  in  the  event  of  the  action,  does  not  extend  to  cases 
of  habeas  corpus,  and  the  claimant  to  an  alleged  fugitive  from  service  can 
not  testify  in  behalf  of  his  claim. 

A  general  understanding  that  the  laws  of  any  state  tolerate  slavery,  does  not 
exempt  a  judge  from  requiring  lawful  evidence  thereof,  and  failing  to  give 
such  evidence  the  claimant  of  an  alleged  fugitive  fails  to  establish  the  main 
point  in  his  case,  issue  having  been  joined  thereon  that  the  person  was 
bound  to  him  in  service. 

It  being  sufficiently  proved  that  the  alleged  fugitive  was  bound  in  service  to 
the  claimant,  yet,  if  the  claimant,  instead  of  removing  him  from  the  state 
without  delay,  has  detained  him  in  his  own  custody,  that  is  a  sufficient  rea- 
son why  the  person  is  entitled  to  his  discharge.  There  is  only  one  case  in 
which  a  fugitive  slave  can  be  k«?pt  by  his  master  in  his  personal  charge  in 
this  state,  and  that  is  under  the  law  of  Congress,  to  take  him  without  delay 
before  the  proper  authority,  in  order  to  obtain  the  certificate  necessary  for 
his  removal  from  the  state.  When  it  appears  that  the  claimant  holds  his 
slave  in  this  state,  not  for  the  purposes  contemplated  in  the  act  of  Congress, 
but  that  he  holds  him  as  his  slave  because  he  owes  him  servitude,  it  is  the 
duty  of  the  judge  to  order  him  to  be  discharged  from  custody. 

On  the  21st  day  oi  December,   1847,  on  an  affidavit  made 
by  Thomas  Peck,  of  the  cily  of  New  York,  setting  forth,  that 
VOL.  I.  22 


170 


DECISIONS  IX  CRIMINAL  CASES. 


In  the  matter  of  Belt. 


on  the  20th  December  (the  day  preceding),  Joseph  Belt,  while 
walking  with  the  deponent  in  Duane  street,  in  the  said  city, 
was  kidnapped  by  some  persons,  to  the  deponent  unknown,  and 
was  carried  off;  and  that  the  deponent  had  just  learned  that 
the  said  Belt  was  carried  to  Gravesend,  on  Long  Island,  by  his 
kidnappers,  and  was  there  detained  by  their  waiting  for  a 
change  of  wind,  to  be  carried  to  the  south  as  a  fugitive  slave; 
and  that  deponent  believed  that  he  would  be  carried  out  of  the 
state  before  he  could  be  relieved  by  a  writ  of  habeas  corpus; 
a  writ  was  issued  by  Judge  Edmonds,  in  pursuance  of  the  pro- 
visions of  the  Revised  Statutes,  addressed  to  the  sheriff  of 
Kings  county,  or  to  any  policeman  of  the  city  of  New  York, 
reciting  the  facts  set  forth  in  the  affidavit,  and  commanding 
the  party  addressed  to  take  the  said  Joseph  Belt,  and  him 
forthwith  bring  before  the  judge  issuing  the  same  at  the  City 
Hall  of  the  city  of  New  York,  to  be  dealt  with  according  to 
law. 

The  sheriff  of  Kings  county,  Daniel  Voorhis,  deputed  Russell 
F.  Hulse,  a  police  officer  of  the  city  of  New  York,  to  execute 
the  process;  and  Hulse,  assisted  by  Samuel  Wolven,  a  police 
officer  of  the  city  of  Brooklyn,  proceeded  immediately  to 
Graresend,  and  on  the  next  day  returned  that  he  had  executed 
the  writ,  and  had  the  person  named  therein  in  custody. 

On  the  hearing  before  Judge  Edmonds  on  the  same  day,  Mr. 
John  Lee,  of  Maryland,  with  his  counsel,  James  R.  Whiting, 
appeared  and  claimed  the  custody  of  Belt  as  his  fugitive  slave, 
and  prayed  time  to  put  in  a  return  to  the  writ  in  the  form  pre- 
scribed by  law,  which  was  duly  granted,  and  the  hearing  post- 
poned until  the  next  morning,  when  the  following  answer  was 
put  in. 

"  I,  John  Lee,  of  the  county  of  Frederick,  in  the  state  of  Mary- 
land, do  return  to  the  annexed  writ,  that  a  colored  boy  named 
Joseph  Belt,  the  person  now  present,  at  the  time  of  the  service 
of  said  writ,  was  under  my  restraint,  and  that  I  claim  to  hold 
him  under  my  restraint  as  a  person  held  to  labor  and  service 
due  to  me  as  a  citizen  of  the  state  of  Maryland.  That  said 
Belt  is  a  fugitive  from  said  state,  and  from  my  service  in  the 


NEW  YORK,  DECEMBER,   1848. 


In  the  matter  of  Belt. 


said  state  of  Maryland,  under  and  by  virtue  of  the  laws  of 
which  state  he  is  held  to  labor  and  service  as  a  slave  to  me. 

'•  I  do  further  return,  that  saiti  Joseph  Belt  ran  away  from 
me  in  the  month  of  November,  one  thousand  eight  hundred  and 
forty-seven.  That  at  that  time  he  was  in  Baltimore,  in  the 
said  state  of  Maryland,  in  my  service,  and  he  privately,  against 
my  knowledge  and  consent,  with  a  view  to  effect  his  escape 
from  my  service,  to  which  he  was  lawfully  held,  and  (as  I  be- 
lieve) proceeded  to  Lynn,  in  the  state  of  Massachusetts,  and 
from  thence  to  the  city  of  New  York. 

"  That  on  Wednesday  last  the  20th  of  December  instant.  I 
caused  the  said  Belt  to  be  arrested  and  brought  to  me,  from 
which  time  and  until  the  service  of  the  annexed  writ  he  was 
in  my  custody  and  control,  as  his  master  and  owner,  and  I 
claim  it  to  be  the  duty  of  your  honor  to  restore  the  said  Belt 
to  my  custody  from  whence  he  has  been  taken  by  the  annexed 
writ,  together  with  a  certificate  sufficient  to  warrant  me  in  re- 
moving said  slave  and  fugitive  from  labor  to  the  state  of  Mary- 
land aforesaid,  from  which  he  fled,  without  any  further  molesta- 
tion or  interruption.  JOHN  LEE 

Sworn  this  23d  day  of  December,  1848. 
J.  W.  EDMONDS. 

Accompanying  the  answer  were  the  affidavits  respectively 
made  by  Theodore  C.  Shadbolt,  of  the  city  of  New  York,  and 
William  Hunkey  and  H.  R.  Howlett,  of  Gravesend,  in  the 
county  of  Kings,  -stating  that  in  conversation  they  had  with 
Belt,  he  had  admitted  that  he  was  the  slave  of  Lee,  that  his 
master  had  brought  him  to  Baltimore  to  sell,  and  that  he  had 
run  away  from  him  at  Baltimore,  and  had  gone  from  there 
to  Lynn,  near  Boston,  in  the  state  of  Massachusetts,  whence  he 
had  come  to  the  city  of  New  York. 

John  Jay,  appeared  as  counsel  for  Belt,  and  asked  time  to 
put  in  a  reply  on  his  behalf,  and  the  hearing  was  adjourned  to 
the  26th  December,  when  the  following  reply  was  made: 

"  I,  Joseph  Belt,  not  admitting  that  at  any  time  I  have  geen 
legally  held  to  service  or  labor  to  John  Lee,  but  insisting  that 


172  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Belt. 

I  am  a  free  citizen  of  the  United  States,  and  not  legally  held 
to  service  or  labor,  do  allege  that  whilst  passing  through  Duane 
street  in  the  city  of  New  York,  in  the  state  of  New  York,  on 
the  20th  day  of  December,  1848,  in  company  with  Thomas 
Peck,  about  half  past  eight  o'clock  in  the  morning,  I  was  seized 
by  two  persons  whom  I  believe  to  be  Charles  Bird  and  Sydney 
Clayton,  and  forcibly  and  violently  thrust  into  a  hack  carriage, 
the  door  of  which  was  immediately  closed  by  the  driver.  That 
the  question  being  asked  why  I  was  so  seized,  it  was  stated 
by  the  persons  arresting  me,  that  I  was  charged  with  stealing  at 
the  fire.  That  both  myself  and  P'eck  denied  having  stolen  any 
thing,  and  insisted  that  we  had  not  been  out  on  the  night  before, 
at  which  time  the  fire  was  said  to  have  taken  place.  Not  regard- 
ing this  denial,  handcuffs  were  placed  by  these  men  upon  me, 
but  as  handcuffs  were  about  being  placed  on  one  of  the  arms  of 
Peck,  he  was  ordered  to  get  out  of  the  hack,  and  was  told  he  wras 
not  the  man.  Peck  refused  to  get  out  of  the  hack,  desiring  to  go 
with  me,  but  at  my  request  he  left  the  hack  to  inform  Mrs. 
Jackson,  at  whose  house  I  boarded,  of  my  arrest.  The  persons 
m  the  hack  told  Peck  they  would  take  me  to  the  Tombs,  where 
he  might  find  me.  After  Peck  left  I  was  carried  to  a  hotel  in 
Broadway,  and  then  to  the  residence  of  Charles  Bird,  in  El- 
dridge  street,  in  the  city  of  New  York. 

"  The  two  men  in  the  carriage  who  had  hand-cuffed  me, 
stated  that  they  were  going  to  take  me  to  Long  Island  and 
keep  me  there  until  they  caught  some  other  person;  that  then 
they  would  bring  me  back  to  New- York  and  have  me  tried,  but 
did  not  say  for  what  they  intended  to  try  me.  That  at  the 
hotel  in  Broadway,  a  man  named  John  Lee  came  into  the  hack, 
and  said  to  me,  "  I  will  pay  you  for  all  this."  One  of  the  men 
got  out  at  the  hotel  when  Lee  entered  the  hack.  On  arriving 
at  Eldridge  street  I  was  compelled  to  get  out  of  the  hack,  go 
up  stairs  into  a  room,  when  Lee  and  Bird  questioned  me  about 
the  whereabouts  of  some  person  I  knew  nothing  of.  After 
remaining  about  fifteen  minutes  I  was  placed  in  the  hack  again 
with  Bird  and  Clayton,  and  driven  across  a  ferry  in  the  East 
river  and  carried  about  ten  miles  to  a  village  on  the  ocean 


NEW  YORK,  DECEMBER.  1848. 


In  ili.-  mat;er  of  Belt. 


beach.  There  I  was  plaml  in  a  room  until  Thursday  evening, 
the  22d  instant,  when  I  was  removed  to  another  house,  about  a 
mile  and  a  half  distant  from  that  I  had  been  first  placed  in.  I 
remained  there  by  force  and  restraint  until  Friday  morning 
about  1  o'clock  when  I  was  brought  back  to  the  city  by  officer 
Hulse,  under  the  warrant  issued  by  his  Honor,  John  W.  Ed- 
monds. I  was  deprived  of  my  liberty  without  any  process  of 
law.  The  seizure  of  me  in  the  public  street  was  done  in  a 
riotous  manner,  in  breach  of  the  peace,  with  illegal  violence. 
From  the  time  of  kidnapping  by  the  said  Bird  and  his  associ- 
ate Clayton,  on  Wednesday  morning,  the  20th  instant,  until 
Friday  morning,  the  22d  instant,  I  was  kept  hand-cuffed  and 
restrained  of  my  liberty.  When  notice  was  given  that  officer 
Hulse  had  arrived  with  a  warrant,  Clayton  hastily  took  off  the 
hand-cuffs  and  asked  me  to  get  out  of  the  window,  intending 
as  I  believed,  to  recapture  me;  I  declined  to  go  out  of  the  win- 
dow; went  through  the  door  into  the  adjoining  room,  and  met 
officer  Hulse. 

I  believe  that  Lee,  Bird  and  Clayton  have  entered  into  a 
conspiracy  to  kidnap  me,  and  carry  me  away  out  of  the  state 
of  New-York.  That  Lee  has  promised  to  indemnify  Bird  and 
Cayton  against  any  harm  they  might  suffer  from  violation  of 
the  laws  of  the  stale  of  New-York.  That  the  intention  of  all 
these  parties  was  to  keep  me  in  irons  in  this  state,  secretly  and 
without  the  knowledge  of  the  public  authorities,  until  they  had 
succeeded  in  kidnapping  some  other  person.  At  no  period 
since  my  arrest  has  any  process  of  law  for  my  arrest  or  deten- 
tion been  exhibited  to  me  or  alleged  to  have  been  issued.  At 
the  time  of  my  arrest  I  was  not  half  a  mile  from  the  ferry  to 
Jersey  City,  and  the  train  for  Philadelphia,  which  is  the  most 
direct  route  for  Baltimore  in  Maryland,  did  not  leave  until  9 
o'clock  A.  M.  That  I  have  been  informed  and  believe  there 
were  eight  regular  departures  or  modes  of  travel  from  this  city 
to  Philadelphia  and  southward  between  eight  o'clock  on  the 
morning  of  the  20th  December,  and  1  o'clock  A.  M.  of  22nd 
December,  and  there  were  other  irregular  departures.  The 
village  where  I  was  detained,  was,  I  believe,  Gravesend,  on 


174  DECISIONS  IX  CRIMINAL  CASES. 

In  the  matter  of  Belt. 

Long  Island,  and  is  in  a  direction  contrary  to  that  of  any  route 
leading  to  Philadelphia  and  southward,  and  there  are  no  regu- 
lar means  of  communication  from  Gravesend  to  Philadelphia. 
Sworn  this  26th  day  of  December,  1848,  his 

before  me.     HENRY  VANDERVOORT,  JOSEPH  >4  BELT. 

Clerk  of  Sessions,  Sfc.  mark. 

To  this  reply,  Lee  put  in  a  general  demurrer. 

For  the  Demurrer.  J.  R.  Whiting,  upon  the  whole  facts 
stated,  contended  — 

1.  That  upon  the  pleadings  in  this  cause,  it  was  clearly  to 
be  inferred,  that  the  boy  Joseph  was  a  slave  belonging  to  Mr. 
Lee;  that  the  averment  that  he  was  a  free  man,  was  no  answer 
to  the  allegation  of  Lee,  that  he  was  a  slave;  that  the  reply 
was  argumentative  and  evasive;  and  he  claimed  of  the  court  to 
decide  that  he  was  now  a  fugitive  slave. 

2.  That,  if  a  slave,  the  master  had  a  right,  under  the  consti- 
tution of  the  United  States,  to  arrest  him  in  this  state,  either 
himself,  or  by  the  persons  whom  he  employed,  without  warrant, 
and  take  him  home  with  him. 

3.  That  in  the  manner  of  the  arrest,  or  in  the  detention  of 
the  slave,  though  done  as  stated  in  the  reply,  there  was  nothing 
to  impair  his  right  to  the  slave;  and  he  demanded  of  the  court, 
lhat  the  boy  should  be  delivered  to  him  as  his  slave. 

In  enforcing  his  claims,  Mr.  Whiting  complained  of  those 
who  interposed  in  aid  of  the  boy,  as  attempting  to  rob  Mr. 
Lee  of  his  property,  and  agitating  a  subject  which  puts  the 
union  of  the  states  in  jeopardy.  He  cautioned  all  concerned 
against  being  led  away  by  sympathy. 

J3gainst  the  Demurrer.  John  Jay,  Jlsa  Childs,  lately  of  the 
Maryland  bar,  and  John  McKeon,  district  attorney  of  the  city 
and  county  of  New-York  (who  appeared  in  the  cause  under  the 
provisions  of  the  statute  of  the  State  of  New- York,  passed  May 
6th,  1840,  requiring  the  district  attorney  of  each  county,  upon 
due  notice,  to  render  his  advice  and  professional  services  in  all 


NEW  YORK,  DECEMBER,  1848.  175 


In  the  matter  of  Belt. 


proceedings  for  the  recovery  of  alleged  fugitives  from  service 
or  labor),  presented  and  argued  the  following  points  — 

I.  This  is  not  a  proceeding  under  the  act  of  congress  for  the 
delivery  of  fugitives.     The  alleged  master  has  not  come  here 
voluntarily  for  a  certificate,  but   he  has  been  dragged  here  by 
force  of  law,  on  a  complaint  entered  on  behalf  of  Belt.     That 
act,  therefore,  has  nothing  to  do  with  these  proceedings,  and 
no  certificate  can  be  properly  demanded  under  it.     The  judge 
will  be  governed  by  the  provisions  of  the  revised  statutes  (2 
vol.  469,  §40  and  41),   and   discharge  the  party  unless   legal 
cause  be  shown.     Belt  stands  here  as  a  free  citizen  of  a  free 
8tate,  and   the  court  will  so'  regard  him  until   the  contrary  be 
proved  in  accordance  with  the  usual  rules  of  evidence.     Even 
admitting  that  he  has  been  held  as  a  slave  by  Lee,  and  has 
escaped  from  him,  it  does  not  follow  that  he  was  legally  held. 
He  may  have  been  kidnapped  from  a  free  state,  and  reduced  to 
slavery  unjustly.     (See  Law  of  New-York  of  1844,  appointing 
agents  to  recover  citizens  who  had  been  kidnapped.)  His  insist- 
ing, therefore,  that  he  is  not  legally  held  to  service,  but  is  a 
free    citizen,    is  a  sufficient  denial   under  2d  revised  statutes 
(page  471,  §  50).     This  is  a  matter  affecting  liberty,  and  every 
intendment  is  to  be  made  in  favor  of  freedom.     The  proceed- 
ing is  a  summary  one,  and  the  strict  rules  of  pleading  are  not 
required  to  be  followed,  provided  the  sworn  answers  are  suffi- 
cient in  substance.     The   reply  is,   therefore  good,  and  the 
demurrer  should  be  overruled. 

II.  Even  if  the  reply  of  Belt  be  construed  as  admitting  that 
he  was  the  slave  of  Lee,  which  it  does  not;  and  if  the  court 
were  sufficiently  satisfied  of  that  fact,  which  they  can  not  be  by 
any  admission  expressed  or  implied,  still  the  other  facts  shown 
by  the  reply  sufficiently  show  that  the  imprisonment  in  which 
he  was  found  on  the  service  of  the  writ  was  illegal: 

First.  Recapture  of  slaves  can  only  be  made  either  under 
the  act  of  congress  of  1792,  or  under  the  constitution  of  the 
United  States. 

Belt  was  not  capturpd  under  the  act,  for  he  was  not  taken 


1  76  DECISIONS  IN  CRIMINAL  CASES 

In  the  matter  of  Belt. 

before  a  magistrate,  nor  any  certificate  obtained  for  his  remo- 
val. His  capture,  to  have  been  legal,  must,  therefore,  have 
been  under  the  power  conferred  by  the  constitution.  But  if 
the  constitution  does  give  such  right,  it  gives  it  only  where  it 
can  be  done  without  a  breach  of  the  pence  or  illegal  violence,  (In 
re  Kirk,  4  JV".  F.  Leg.  Obs.,  459,  quoting  Prigg  v.  Common' 
wealth  of  Pennsylvania,  16  Peters,  539.)  The  owner's  privi- 
lege being  in  derogation  of  state  rights  —  the  rights  of  every 
free  citizen  are  to  be  preserved  —  the  power  to  seize  the  slave 
is  coupled  with  the  condition  that  there  be  no  illegal  violence; 
and  if  the  condition  is  broken  in  the  execution  of  the  power, 
the  power  is  gone,  and  the  arrest  is  void.  Here  there  was 
illegal  violence  towards  a  free  citizen,  Peck,  in  the  arrest  of 
Belt;  and  an  infringement  upon  the  public  peace;  and  the 
arrest  of  Belt  was  therefore  illegal  ab  initio,  and  any  subse- 
quent detention  under  it  void- 

Second.  The  answer  shows  the  detention  to  have  been  illegal, 
even  if  the  arrest  were  good.  The  power  of  recapturing  slaves, 
is  in  derogation  of  state  sovereignty  and  common  law  right,  and 
must  be  strictly  followed.  It  is  given  simply  for  the  purpose 
of  removing  the  slave  to  the  state  from  whence  he  fled.  (See  JJct 
of  Congress,  1792.)  The  owner  is  entitled  to  reasonable  time 
to  recover  his  slave,  but  may  not  detain  him  here  for  his  con- 
venience. Here,  no  intention  immediately  to  remove  the  boy 
appears,  but  the  contrary.  Belt  was  taken  from  the  city  of 
New  York,  the  usual  port  of  departure  where  opportunities  for 
removal  abound,  to  a  remote  village,  and  moved  from  house  to 
house  for  the  purposes  of  confinement  and  concealment,  until 
an  indefinite  period,  when  some  other  alleged  slave  should  have 
been  captured.  Such  detention  can  not  be  justified  under  the 
facts  shown,  nor  could  it  have  been  justified  if  a  certificate  had 
been  previously  obtained  by  Lee  under  the  act  of  congress,  for 
such  certificate  warrants  not  the  detention  of  the  slave  in  the 
state,  but  only  the  removal  of  the  slave  out  of  the  state.  (See 
Revised  Statutes,  662  [repealed],  that  slaves  became  free  if  con- 
tinued here  beyond  time  specified;  and  Jlctof  May  6,  1840,  Gen. 
Stat.  page  330,  §7,  that  the  removal  must  be  by  direct  route.} 


NEW  YORK,  DECEMBER,  1848. 


In  the  matter  of  Belt. 


And  under  the  principle  settled  in  the  case  of  slaves  (18 
Pickering),  the  voluntary  detention  of  Belt  in  a  free  state  by 
his  master,  entitles  him  to  his  freedom. 

Third.  If  the  demurrer  is  overruled,  and  the  reply  held  suf- 
ficient, Belt  is  entitled  to  be  immediately  discharged.  The 
reply  shows  his  right  to  freedom,  apart  from  any  facts  that 
might  be  produced  touching  his  former  condition,  and  as  it  is 
in  the  discretion  of  the  court  to  decide  finally  on  the  present 
hearing,  they  will  not  detain  an  innocent  man,  who  is  to  be 
held  free  until  proved  to  "be  a  slave,  in  order  to  allow  the  re- 
spondent to  procure  or  manufacture  proofs  of  his  having  been 
once  a  slave.  He  should  have  brought  legal  proofs  when  he 
first  came  to  arrest  him. 

The  counsel  for  Belt,  in  reply  to  the  charge  of  interference 
with  the  constitutional  rights  of  the  claimant,  maintained  that 
the  claimant  admitting  Belt  to  have  been  his  slave,  had,  in  his 
arrest  and  detention  in  the  manner  proven,  overstepped  the 
farthest  limits  of  his  authority,  and  committed  an  outrage  upon 
the  dignity  of  the  state  of  New  York,  and  the  peace  and  quiet 
of  its  citizens. 

Whiting,  in  reply  —  quoted  Sergeant  on  the  Constitution,  ch 
31,  page  387;  Glen  v.  Hoages,  9  Johnson,  R.  69;  Wright  v. 
Dean,  5  Ser.  Sf  Rawle,  62;  Commonwealth,  fyc.  v.  Griffin,  3 
McLean,  480. 

The  court  after  taking  time  for  examination  overruled  the 
demurrer,  adjudging  the  reply  sufficient,  and  allowed  Lee  to 
submit  proof  in  support  of  his  claim. 

THOMAS  LEE,  sworn  as  a  witness  for  the  claimant.  —  I  reside 
in  Frederick  county,  Maryland,  and  have  resided  there  all  my 
life.  I  am  twenty-nine  years  old,  and  am  nephew  of  the  claim- 
ant I  know  Belt  perfecty.  He  is  the  man  now  here.  I  have 
known  him  as  long  as  I  can  recollect,  upon  the  estate  of  the 
claimant  in  Frederick  county,  Maryland,  where  he  resides.  He 
was  always  on  that  estate  when  I  knew  him;  he  was  born  the 

VOL.  I.  23 


DECISIONS  IN  CRIMINAL  CASES. 


la  the  matter  of  Belt. 


slave  of  John  Lee^  and  was  always  in  his  service;  I  knew  his 
mother,  who  was  also  in  his  service;  she  was  a  slave  also.  I 
knew  his  grandmother;  she  was  on  the  same  estate,  and  is  still 
living.  Belt  is  about  twenty-two  years  old.  I  saw  him  last 
until  yesterday  in  the  railroad  cars  going  to  Baltimore;  Lee 
was  with  him.  I  am  pretty  well  acquainted  with  the  laws  of 
Maryland. 

Qaestion  by  counsel  for  claimant.  —  Do  those  laws  authorize 
slavery? 

To  this  question  the  counsel  for  Belt  objected,  and  after  an 
argument  thereon,  the  court  overruled  the  objection  and  allowed 
the  question  to  be  put. 

Jlnswer.  —  Yes,  sir,  they  do. 

Question  by  counsel  for  claimant.  —  Do  you  hold  slaves  under 
those  laws? 

Objected  to,  and  the  objection  sustained  by  the  court. 

Cross-examined  by  McKEON  of  counsel  Jor  Belt.  —  Mr.  Lee 
sold  Belt's  mother  as  a  slave.  My  estate  joins  that  of  Mr.  Lee. 
I  know  the  boy  was  not  born  in  New  York  or  Pennsylvania, 
but  I  was  not  present  at  his  birth. 

Direct  examination  resumed.  —  Belt  went  to  Baltimore  as  a 
house  servant. 

Question.  —  Did  your  ever  hear  of  Belt's  claiming  to  be  free 
from  the  service  of  the  claimant? 

To  this  question  the  counsel  for  Belt  objected,  insisting  that 
no  previous  acts  or  expressions  of  Belt  could  be  received  as 
evidence  to  prove  that  he  was  a  slave;  and  after  hearing  an 
argument  on  the  point,  the  court  overruled  the  objection,  and 
declared  that  the  contemporaneous  acts  of  the  parties  might  be 
shown. 

Direct  examination  resumed.  —  I  never  heard  of  Belt's  claim- 
ing to  be  a  free  man.  I  have  heard  Belt  call  Mr.  Lee  master. 
Belt  was  always  considered  by  the  other  slaves  on  the  estate  as 
a  slave.  People  resident  there  are  acquainted  with  each  other's 
slaves  in  the  neighborhood.  Belt  was  always  reputed  in  the 
neighborhood  to  be  a  slave.  I  have  not  the  slightest  doubt  as 
to  Belt's  identity 


NEW  YORK,  DECEMBER,  1848.  ^79 

In  the  matter  of  Belt. 

Cross-examination  resumed. — Belt  is  a.  mulatto. 

The  counsel  for  the  claimant  here  offered  the  laws  of  Mary- 
land from  their  statute  book,  and  objection  being  made  by  the 
counsel  for  Belt,  quoted  1  Greenleaf  on  Evidence,  §  489,  an  1 
the  decisions  there  quoted  being  held  by  the  court  to  be  inaj> 
plicable  to  the  state  of  New  York,  a  different  rule  having  been 
adopted  by  the  courts  of  that  state,  the  counsel  referred  to  a 
recent  statute  of  the  state  of  New  York,  passed  April  12, 1848, 
entitled  "  An  Act  relative  to  the  proof  of  the  statute  and  com- 
mon law  of  other  states  and  territories."  "  §  1.  Printed  vo- 
lumes, copies  of  the  statute  laws  of  any  other  of  the  United 
States  or  of  the  territories  thereof,  if  purporting  to  be  published 
under  the  authority  of  the  respective  governments,  or  if  com- 
monly admitted  and  read  as  evidence  in  their  courts,  shall  be 
admitted  in  all  courts  of  law  and  on  all  other  occasions  in  this 
state  as  prima  facie  evidence  of  such  laws." 

The  volume  offered  in  evidence  was  objected  to  by  the  coun- 
sel for  Belt  on  the  ground  that  it  did  riot  appear  that  it  was 
published  "  by  the  authority  of  the  government  of  Maryland," 
and  there  was  no  evidence  that  it  was  a  volume  commonly 
admitted  and  read  in  their  courts.  The  counsel  for  the  claim- 
ant proposed  to  prove  by  a  resident  of  Maryland,  that  the 
volume  offered  was  the  regularly  authorized  edition  of  the 
laws  of  the  state,  and  as  such  was  recognized  and  read  in  their 
courts,  and  for  this  purpose  called,  as  a  witness, 

John  Lee,  the  claimant  in  person,  whom  he  was  about  to 
examine,  when  Jay  on  behalf  of  Belt  objected  on  the  ground 
that  Mr.  Lee  being  directly  interested  in  the  result  was  utterly 
incompetent  to  testify  in  the  matter. 

.  </4  ',  i 

Whiting.  By  the  new  code  no  person  is  excluded  by  reason 
of  his  interest  in  the  event  of  the  action.  Mr.  Lee  is  perfectly 
competent. 

Jay.  If  the  code  authorizes  the  claimant  in  a  matter  involv- 
ing personal  liberty  to  testify  in  his  own  behalf,  it  is  clearly 
unconstitutional.  Our  common  law  rights  in  this  matter  are 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Belt. 


part  of  the  constitution,  and  arc  not  to  be  overthrown  by  an 
act  of  the  legislature. 

The  Court.  Whatever  may  be  thought  of  the  code  generally, 
it  is  not  unconstitutional,  for  it  expressly  excepts  the  new  rule 
of  evidence  from  all  cases  of  this  kind,  and  the  testimony  of 
Mr.  Lee  is  inadmissible. 

Whiting.    I  will  then  call  Mr.  Child. 

Jlsa  Child,  Sworn.  I  have  practiced  law  in  Baltimore.  In 
Maryland  they  have  books  of  law  similar  to  this,  which  purport 
to  be  published  by  authority,  which  are  read  in  their  courts  as 
evidence. 

I  did  not  know  Jeremiah  Hughes.  I  am  not  aware  that  this 
is  a  copy  of  the  books  thus  read.  I  have  seen  similar  volumes 
that  are  lead  in  the  courts  of  Maryland  that  look  like  this. 

By  the  Court.     I  can  not  say  that  this  volume  is  a  copy  of 
those  commonly  admitted  and  read  in  evidence  in  their  courts. 
The  testimony  on  the  part  of  the  claimant  here  closed,  and 

Child  moved  on  the  facts  as  they  stood  to  dismiss  the  pri- 
soner. 

Jay,  in  support  of  the  motion,  was  stopped  by  the  court. 

Whiting,  on  behalf  of  the  claimant,  argued  at  length  the  fol- 
lowing points: 

1.  That  the  judge  had  no  jurisdiction  to  take  the  boy  out  of 
his  master's  custody.     (Prigg  v.  Commonwealth  of  Pennsylva- 
nia, 16  Peters.     Case  of  Jack,  12  If  14  Wendell's  R.     In  re 
Kirk,  4  JV.  F.  Legal  06*.) 

2.  That  in  a  slave  state,  all  colored  men  are  presumed  to  be 
slaves;  and  that  the  same  presumption  must  be  allowed  here. 
(Jones  v.  Van  Zandt,  2  M'Lean,  596;  1  Washington's  C.  C.R. 
308;  2  Wend.  1.) 

By  the  Court:  EDMONDS,  J.,  said  he  would  not  trouble  the 
counsel  for  the  prisoner  to  argue  the  case.  There  were  two 


NEW  YORK,  DECEMBER,   1(348. 


In  the  matter  of  Belt. 


points  on  which  his  mind  was  very  clear,  and  which  were  deci- 
sive of  the  question  before  him. 

In  the  first  place,  it  was  necessary  for  the  claimant  to  estab- 
lish the  fact,  that  the  prisoner  was  bound  to  service.  The 
evidence  was  satisfactory  that  he  had  been  held  to  service  in 
Maryland,  but  there  was  no  evidence,  that  under  the  laws  of 
that  state  he  was  bound  to  service. 

The  claimant  had  failed  to  prove  the  laws  of  Maryland  in 
such  a  manner  as  under  the  rules  of  evidence,  to  permit  them 
to  be  referred  to,  and  he  could  not  therefore  know  or  hold  that 
by  those  laws,  slavery  was  tolerated  in  that  state.  It  was  true, 
it  was  generally  understood  that  it  was,  but  upon  any  such 
general  understanding  no  judge  could  act.  There  must  be 
lawful  evidence  thereof,  and  that  the  claimant  had  failed  to 
give.  He  had,  therefore,  failed  to  establish  the  main  point  in 
his  case,  and  on  which  the  issue  has  been  joined,  namely,  that 
Belt  was  bound  to  him  in  service. 

But  even  if  that  had  been  sufficiently  proved,  there  was 
another  reason  why  the  prisoner  was  entitled  to  his  discharge, 
and  that  arose  from  the  manner  in  which  he  was  detained  by 
his  master. 

There  was  only  one  case  in  which  a  fugitive  slave  could  be 
held  by  his  master,  in  his  personal  custody,  in  this  state.  That 
was  under  the  law  of  congress  to  take  him  without  delay 
before  the  proper  authorities,  in  order  to  obtain  the  certificate 
necessary  to  justify  his  removal  out  of  the  state.  This  had  not 
been  done  in  this  case.  Instead  of  taking  Belt  before  the  Uni- 
ted States  District  Judge,  the  claimant  had  removed  him  to  a 
distance.  Instead  of  taking  him  there  without  delay,  he  had 
detained  him  in  his  own  custody  for  two  days.  Instead  of 
seeking  a  judicial  determination  on  his  claim  to  the  boy's  ser- 
vices, he  had  withdrawn  him  to  a  distance  and  concealed  him. 
And  now  on  his  return  he  claims,  not  that  he  holds  him  under 
the  act  of  congress  for  the  purposes  contemplated  in  that  stat- 
ute, but  that  he  holds  him  as  his  slave,  because  he  owes  him 
servitude.  If  he  can  do  this  for  two  days,  he  can  for  two 
years  or  twenty.  To  justify  this,  would  warrant  every  slave- 


182 


DECISIONS  IN  CRIMINAL  CASES. 


Burns  and  Gary  v.  The  People. 


holder  in  the  nation  to  hold  his  slaves  in  this  state  as  long  as 
he  pleases,  notwithstanding  that  slavery  was  unknown  to  our 
laws. 

As  the  claimant  then  avowed  that  he  held  the  boy  not  in 
conformity  lo  the  act  of  congress,  but  in  contravention  of  it,  it 
was  the  duty  of  the  judge  to  order  him  to  be  discharged  from 
that  custody. 

In  doing  so,  however,  the  judge  said  he  must  not  be  under- 
stood as  attempting  to  decide  the  question,  whether  the  boy 
was  actually  a  slave,  or  whether  his  master  had  or  had  not  the 
right  to  enforce  his  return  to  his  service,  under  the  1-aws  of 
congress.  These  were  questions  not  before  him,  and  on  them 
he  expressed  no  opinion.  He  merely  intended  to  decide  that 
the  boy  was  entitled  to  be  discharged  from  his  present  restraint, 
because  that  restraint  was  not  in  conformity  to  the  laws  of 

congress,  or  the  laws  of  this  state. 

Discharge  ordered 


SUPREME  COURT.    Erie  General  Term,  November,  1848.    Hoyt, 
Mullett  and  Marvin,  Justices. 

BURNS  AND  GARY  plaintiffs  in  error  vs.  THE  PEOPLE  defendants 

in  error. 

A  trial  and  conviction,  before  a  court  of  Special  Sessions,  for  an  assault  and 
battery,  are  no  bar  to  a  subsequent  indictment  for  manslaughter,  where  the 
person  assaulted  dies  subsequently,  of  the  wounds  caused  by  the  blows,  for 
inflicting  which  the  complaint  for  assault  and  battery  was  made. 

A  former  trial  is  no  bar,  unless  the  first  indictment  was  such  as  the  accused 
might  have  been  convicted  upon,  by  proof  of  the  facts  set  forth  in  the 
second  indictment.  To  constitute  a  bar  the  offence  charged  in  both  indict- 
ments must  be  identically  the  same  in  law  as  well  as  in  fact. 

Held,  that  upon  the  trial  of  an  indictment  for  murder  where  death  has  ensued, 
the  accused  can  not  be  convicted  of  a  simple  assault  and  battery/  though  he 
may  be  of  manslaughter. 

Error  to  the  recorder's  court  of  the  city  of  Buffalo. 

The  plaintiffs  in  .error  and  .one  Michael  Tracy  were  indicted 


ERIE,  NOVEMBER,   1848. 


Burns  and  Caty  v.  The  People. 


at  the  recorder's  court  in  March,  1847,  for  manslaughter,  in 
killing  one  Clark  Cromb,  by  blows  inflicted  on  him  the  19th 
day  of  February,  1847,  of  which  injuries  he  died  on  the  9th 
day  of  March,  1847. 

Burns  and  Gary,  on  being  arraigned,  pleaded  separately,  in 
bar,  that  they  were,  on  the  20th  day  of  February,  1847,  ar- 
rested by  virtue  of  a  warrant  issued  by  a  justice  of  the  peace, 
on  the  complaint  of  Clark  Cromb,  for  ah  assault  and  battery 
committed  upon  him  on  the  19th  day  of  February,  and  were 
brought  before  the  said  justice;  that  they  then  pleaded  not  guilty 
and  elected  to  be  tried  by  and  before  the  justice,  who  pro- 
ceeded to  the  trial  of  the  issue,  and  that  such  proceedings  were 
had  before  the  justice  that  he  adjudged  and  determined  them 
guilty  of  the  offence  charged,  and  then  and  there  ordered  and 
adjudged  each  of  them  to  pay  a  fine  of  five  dollars,  &c.  There 
were  averments  of  the  jurisdiction  of  the  justice,  the  identity 
of  the  offence,  and  that  the  judgment  of  the  justice  still  remains 
in  full  force,  &c.  To  the  plea  of  each  defendant,  the  counsel 
for  the  people  demurred,  and  assigned  for  causes  of  demurrer: 

1.  That  it  does  not  appear  from  the  plea,  that  the  offence  for 
which  they  were  tried  before  the  justice,  was  the  same  offence 
charged  in  the  indictment; 

2.  That  it  does  not  appear  from  the  plea  that  the  court  of 
special  sessions  had  jurisdiction  to  try  the  offence  charged  iu 
the  indictment.     Joinder  in  demurrer. 

The  recorder's  court  gave  judgment  for  the  people,  and  the 
defendants  sued  out  a  writ  of  error. 

Eli  Cook,  for  plaintiffs  in  error. 

B.  Jlustin  (district  attorney),  for  the  people. 

By  the  Court,  MARVIN,  J. — It  is  insisted  by  the  plaintiffs  in 
error,  that  they  bring  themselves  within  the  provision  of  the 
constitution,  that  "  no  person  shall  be  subject  to  be  twice  put 
in  jeopardy  for  the  same  offence."  This  provision  is  a  funda- 
mental maxim  in  criminal  jurisprudence.  It  is  derived  from 


DECISIONS  IN  CRIMINAL  CASES. 


Burns  and  Gary  v.  The  People. 


the  ancient  and  well  established  principles  of  ihe  common  law, 
and  was  ratified  by  magna  charta.  When  this  principle  is 
appealed  to,  as  a  bar  to  further  proceedings,  in  a  criminal  pro- 
secution, the  inquiry  always  arises,  has  the  party  in  fact  been 
put  in  jeopardy  for  the  same  offence?  To  sustain  the  plea  of 
a  former  acquittal,  it  must  appear  that  the  party  was  "  put  in 
jeopardy"  by  the  former  trial;  thus,  if  the  indictment  upon 
which  he  had  been  tried,  was  so  defective  that  no  judgment 
could  have  been  given  upon  it,  it  would  not,  at  common  law, 
constitute  a  bar.  (1  /.  R.  66;  1  Russ.  on  Cr.  836.) 

But  now  by  our  R.  S.  (v.  2,  p.  702,  325)  if  the  party  be  tried 
and  acquitted  upon  the  merits,  it  will  be  a  bar.  So  it  will  not 
be  a  bar  if  the  court  had  no  jurisdiction  to  try  the  offence.  (  1 
Russ.  071  Cr.  836.)  Or  if  the  jury  has  been  discharged  without 
rendering  a  verdict.  (People  v.  Goodwin,  18  J.  R.  187;  9  Mass. 
R.  494;  U.  S.  v.  Perez.  9  Wheat.  R.  579.)  Or  if  there  has 
been  a  failure  of  the  trial  for  any  other  cause.  (12  Pick.  R- 
496.) 

The  former  acquittal  or  conviction  must  have  been  "  for  the 
same  identical  act  and  crime."  (4  Black.  Com.  336;  1  Russ. 
on  Cr.  8,36,829.)  "V. 

The  plea  of  a  former  acquittal  will  not  be  good,  unless  the 
facts  charged  in  the  second  indictment  would,  if  they  had  been 
established  on  the  trial  of  the  first  indictment,  have  sustained 
it.  The  rule  is  thus  stated  by  Justice  Buller,  in  Rex  v.  Van- 
dercomb,  cited  in  1  Russ.  on  Cr.  831,  "  Unless  the  first  indict- 
ment was  such  as  the  prisoner  might  have  been  convicted  upon, 
by  proof  of  the  facts  contained  in  the  second  indictment,  an 
acquittal  on  the  first  indictment  can  be  no  bar  to  the  second." 
(See  also  Arch.  Cr.  PI.  87,  #c./  King  v.  Taylor,  3  Barn.  £ 
Cress.  502.)  Mr.  Chitty  (1  Chit.  Cr.  Law,  452)  states  the 
rule  thus,  "  To  entitle  the  defendant  to  this  plea,  it  is  necessary 
that  the  crime  charged  be  precisely  the  same;"  "  if  the  crimes 
charged  in  the  former  and  present  prosecution  are  so  distinct, 
that  evidence  of  the  one  will  not  support  the  other,  it  is  incon- 
sistent, with  reason,  as  it  is  repugnant  to  the  rules  of  law,  to  say 
that  the  offences  are  so  far  the  same,  that  the  acquittal  of  the 


ERIE,  NOVEMBER,   1548." 


Burns  and  Gary  v.  The  People. 


one  will  bo  a  bar  to  the  prosecution  for  the  other."  (See  Com- 
monwealth. v.  Raby,  12  Pick.  496.) 

In  the  case  last  cited,  Chief  Justice  Shaw  says,  "  In  consi- 
dering the  identity  of  the  offences,  it  must  appear  by  the  plea 
that  the  offence  charged  in  both  cases  was  the  same  in  law  and 
in  fact.  The  plea  will  be  vicious  if  the  offences  charged  in 
the  two  indictments  be  perfectly  distinct  in  point  of  law, 
however  nearly  they  may  be  connected  in  fact."  This  case  is 
in  point.  Raby  was  convicted  in  July,  1831,  upon  an  indict- 
ment for  a  felonious"  assault  upon  Maria  Leonard  on  the  2d  day 
of  May,  with  intent  to  kill  and  murder  her.  After  this  con- 
viction Leonard  died,  and  in  November  Raby  was  indicted  for 
murder.  He  pleaded  in  bar  the  former  trial  and  conviction. 
The  plea  was  overruled,  and  it  was  held  that  the  conviction  for 
the  assault  with  intent  to  murder,  could  not  be  plead  in  bar  of 
an  indictment  for  murder,  on  the  ground  that  the  offences  are 
distinct  in  their  legal  character.  The  court  say,  "The  indict- 
ment for  murder  necessarily  charges  the  fact  of  killing  as  the 
essential  and  most  material  fact,  which  gives  its  legal  character 
to  the  offence." 

If  the  party  assaulted,  after  a  felonious  attempt,  dies  within 
a  year  and  a  day,  the  same  act  which,  till  its  death,  was  an 
assault  and  misdemeanor  only,  though  aggravated,  is  by  that 
event  shown  to  have  heen  a  mortal  wound.  The  event,  strictly 
speaking,  does  not  change  the  character  of  the  act,  but  it 
relates  back  to  the  time  of  the  assault  and  the  same  act,  which 
might  be  a  felonious  assault  only,  had  the  party  not  died,  is  in 
truth  shown  by  that  event  to  have  been  a  mortal  wound,  and 
the  crime,  which  would  otherwise  have  been  an  aggravated 
misdemeanor,  is  thus  shown  to  be  a  capital  felony. 

The  facts  are  essentially  different  and  the  legal  character  of 
the  crime  essentially  different.  In  the  case  under  consideration, 
the  indictment  contains  facts  which  did  not  exist  at  the  time 
the  prisoners  were  on  trial  before  the  justice  for  a  simple 
assault  and  battery,  facts  which  entirely  change  the  character 
of  the  crime.  Cromb  was  then  living,  he  is  now  dead,  and,  as 
the  indictment  stated,  the  defendants  did  feloniously  and  will- 

VOL.  I.  24 


DECISIONS  IN  CRIMINAL  CASES. 


Burns  and  Gary  t>.  The  People. 


fully  kill  and  slay  him.  The  acts  of  the  defendants  are  the 
same,  but  the  event  has  shown  that  those  acts  were  felonious. 
The  event  relates  back  to  the  acts  and  gives  them  a  new  cha- 
racter, and  if  this  indictment  be  a  true  bill,  the  prisoners  were 
never  guilty  of  an  assault  and  battery,  as  the  misdemeanor  is 
merged  in  the  higher  offence  of  felony.  (1  Russ.  on  Cr.  50,  v. 
2,  550;  Bouvier's  Law  Diet,  title  Merger  Cr.  L.) 

It  was  argued  by  the  counsel  for  the  plaintiffs  in  error,  that 
if  the  jury  should  acquit  them  of  the  offence  charged  in  the 
indictment,  they  may  still  be  convicted  of  the  assault  and  bat- 
tery, and  thus  be  a  second  time  punished  for  the  same  offence. 
He  referred  us  to  2  R.  S.  702.  §  27,  which  provides  that  upon 
an  indictment  for  an  offence,  consisting  of  different  charges,  the 
jury  may  find  the  accused   not  guilty  of  the  offence  in  the 
degree  charged  in  the  indictment,  and  may  find  such  accused 
person  guilty  of  any  degree  of  such  offence,  inferior  to  that 
charged  in  the  indictment,  or  of  an  attempt  to  commit  such 
offence.     The  indictment  charges  a  homicide;  a  felonious  and 
willful  killing  and  slaying.    An  assault  and  battery  can  not  be 
"  any  degree  of  such  offence."     The  killing  of  a  human  being 
without  authority  of  law  is  either  murder,  manslaughter,  or 
excusable  or  justifiable  homicide,  according  to  the  facts  or  cir- 
cumstances in  each  case.    (2  R.  S.  656,  §4.)    In  murder  there 
are  no  different  degrees,  but  in  manslaughter  there  are  four 
degrees  as  declared   and   defined    by  the   statute.     Homicide 
embraces  all  mankilling,  and  murder  is  the  highest  degree. 
Manslaughter  is  another  degree  or  class  of  homicide,  and  is  a 
degree  lower  than  murder.     Both   are  felonies,  and  upon  an 
indictment  for  murder,  the   accused  may  be  convicted  of  any 
degree  of  manslaughter,  but  he  can  not  be  convicted  of  a  simple 
assault  and  battery,  for  when  death  has  ensued  from  the  beating, 
the  homicide    is  murder,  manslaughter,   or  excusable  or  jus- 
tifiable.    If  the  killing  was  excusable  or  justifiable,  then  the 
accused  can  not  be  convicted  of  any  offence.    If  the  killing  was 
not  excusable  or  justifiable,  then  the  offence  would  be  murder 
or  manslaughter,  a  felony,  in  which  crime  the  assault  and  bat- 
tery would  be  merged;  and  in  such  a  case,  if  the  accused  were 


NEW  YORK,  NOVEMBER,  184S. 


The  People  v.  Martin. 


indicted  for  a  simple  assault  and  battery,  it  would  be  the  duty 
of  the  jury  to  acquit  him,  and  he  might  be  indicted,  tried  and 
convicted  of  the  murder  or  manslaughter,  as  the  case  might  be, 
The  judgment  of  the  recorder's  court  should  be  affirmed. 

Judgment  affirmed 


SUPREME  COURT.     At  Chambers.     Before  Edmonds,  Justice. 
November,  1848. 

THE  PEOPLE  vs.  MARY  MARTIN  and  CAROLINE  MARTIN. 

On  habeas  corpus,  how  far  the  court  or  officer  granting  it,  is  bound  by  the 
return,  or  may  go  behind  it. 

In  criminal  cases  where  an  indictment  has  been  found,  he  can  not  go  behind 
the  indictment,  because  there  are  no  means  of  ascertaining  upon  what  the 
indictment  was  founded. 

But  on  a  commitment  before  indictment,  the  whole  question  of  guilt  or  innocence 
is  open  for  examination  on  the  return  to  the  writ  of  habeas  corpus,  and  the 
inquiry  is  not  necessarily  confined  to  an  examination  of  the  original  deposi- 
tions. 

In  such  cases,  under  our  revised  statutes,  the  proceedings  on  a  habeas  corpus 
ar>  in  the  nature  of  an  appeal  from  the  decision  of  the  committing  magistrate. 

ON  the  return  to  a  writ  of  habeas  corpus  sued  out  for  the  pri- 
soners, it  appeared  they  were  detained  on  a  full  warrant  of 
commitment  for  trial  on  a  charge  of  grand  larceny  issued  by 
one  of  the  police  magistrates  of  the  city. 

They  filed  their  allegations  in  answer  to  the  return,  setting 
up  that  they  were  arrested  without  warrant  by  a  person  not  a 
police  officer.  That  when  taken  before  the  magistrate,  he 
refused  to  examine  the  complainant  in  their  presence,  though 
they  demanded  it  and  committed  them  for  trial.  The  allega- 
tions also  averred  the  innocence  of  the  accused,  and  that  the 
money  they  were  accused  of  stealing,  was  given  to  them  under 
pretence  of  teaching  French,  but  really  for  purposes  of  seduc- 
tion. 

On  filing  these  allegations,  McKeon,  district  attorney,  and 


138  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Martin. 

Galbraith,  for  the  prosecution,  insisted  that  the  warrant  of 
commitment  being  regular  on  its  face,  was  conclusive  on  habeas 
corpus,  and  no  inquiry  could  extend  behind  it 

A.  Nash,  contra. 

January  8,  1849,  EDMONDS,  J.,  delivered  his  opinion.  —  It  is 
claimed  in  this  case,  in  behalf  of  the  prosecution,  that  the  com- 
mitment of  the  magistrate  is  conclusive  upon  me,  and  that  I 
have  no  right  on  this  return  to  look  beyond  the  question  of  its 
regularity  or  that  if  I  do  look  beyond  it,  I  can  look  only  at  the 
depositions  taken  before  the  magistrate. 

I  had  understood  the  law  otherwise,  and  have  always  sup- 
posed that  by  means  of  this  writ,  the  officers  who  were  author- 
ized to  allow  it,  were  by  its  very  nature  clothed  with  a  certain 
revisory  power  over  those  by  whose  mandate  any  person  might 
be  restrained  of  his  liberty. 

The  earnest  manner  in  which,  however,  the  contrary  doctrine 
was  pressed  upon  my  attention,  the  construction  which  has 
been  put  upon  the  decision  of  this  court  in  the  McLeod  case, 
and  the  fact  that  the  legislature  has,  once  at  least  (by  depriving 
the  judges  of  the  superior  tribunals,  of  the  power  of  revising 
the  action  of  the  committing  magistrate  in  fixing  the  amount 
of  bail),  departed  from  the  great  principles  of  the  habeas  corpus 
law,  have  caused  me  to  hesitate  in  yielding  to  my  first  impres- 
sions, which  I  confess  were  rather  the  fruits  of  the  read- 
ing of  my  early  boyhood  than  of  riper  years,  and  have 
induced  me,  at  some  labor,  to  review  the  law  on  this  subject  at 
large.  I,  by  no  means,  regret  this,  though  it  has  been  some- 
what difficult  to  find  among  the  pressing  nature  of  my  other 
avocations,  time  enough  to  devote  to  a  task  involving  so 
extended  an  examination  as  I  have  given  the  subject,  for  an 
accurate  and  intimate  knowledge  of  the  properties  of  this  great 
instrument  of  personal  liberty,  the  writ  of  habeas  corpus,  can 
not  but  be  valuable  to  every  citizen. 

The  language  of  our  statute,  "  of  writs  of  habeas  corvus  and 
eertiorari,  when  issued  to  inquire  into  the  cause  of  detention" 


NEW  YORK,   NOVEMBER,  1848. 


The  People  v.  Martin. 


(2  R.  S.  567),  is  not  sufficiently  definite  to  leave  no  room  for 
doubt  on  this  question.  Every  person  committed,  detained, 
confined  or  restrained  of  his  liberty  under  any  pretence  what- 
ever (except  in  a  few  enumerated  cases),  may,  it  is  true,  prose- 
cute this  writ.  On  the  return  of  the  writ,  the  facts  contained 
in  the  return  may  be  examined  into  as  well  as  the  cause  of  the 
confinement,  and  if  no  legal  cause  be  shown  therefor,  the  party 
may  be  discharged.  (Ib.  567.)  Upon  these  enactments,  for 
they  are  not  new,  it  has  been  held  that  the  officer  allowing  the 
writ  out  of  court  could  not  go  behind  the  return.  To  remedy 
that,  section  50  was  enacted  (76.  569),  giving  to  the  impri- 
soned party  the  power  to  deny  any  material  fact  set  forth  in 
the  return,  or  to  allege  any  fact  to  show  the  detention  illegal 
or  that  the  party  was  entitled  to.  his  discharge,  whereupon,  the 
officer  may  hear  such  allegations  and  proofs,  as  may  be  pro- 
duced in  support  of  the  detention  or  against  the  same,  and 
dispose  of  the  party  as  the  justice  of  the  case  may  require. 

This  language  is  broad  enough  to  confer  upon  the  officer  the 
most  ample  power  on  habeas  corpus,  to  inquire  into  the  guilt  or 
innocence  of  the  party  as  to  the  offence  charged,  for  on  that,  if 
his  detention  be  not  illegal,  he  may  be  entitled  to  his  discharge. 
But  it  has  been  held  that  on  habeas  corpus,  the  court  or  officer 
will  not  try  the  question  of  guilt  or  innocence.  (  1  Ch.  Cr.  L. 
130.) 

And  Cowen,  J.,  in  McLeod's  case  (  1  Hill  R.  394),  is  very 
explicit  in  laying  down  the  same  doctrine,  and  he  declares  that 
the  provision  of  the  statute  which  I  have  quoted,  would  be  sat- 
isfied by  being  limited  to  the  lawfulness  of  the  authority  under 
which  the  prisoner  is  detained,  without  being  extended  to  the 
force  of  the  evidence  upon  which  the  authority  was  exerted. 
(Ibid,  404.) 

And  in  the  statute  to  which  I  have  referred,  I  mean  the 
police  law  relative  to  this  city,  the  legislature  have  gone  some 
ways  to  sanction  the  same  doctrine.  So  that  with  this  positive 
enactment  in  the  police  law,  and  this  construction  of  the  habeas 
corpus  act,  the  power  of  the  committing  magistrate  as  to  the 
question  of  guilt  or  innocence,  and  as  to  the  amount  of  bail  to 


190  DECISIONS  IN  CRIMINAL  CASES. 

The  People  r.  Martin. 

be  required,  would  become  absolute,  irreversible  and  above  all 
review.  A  power  of  this  extent  would  ride  over  all  the  courts 
in  the  land,  and  become  perfectly  despotic,  if  it  was  not  subject 
to  review  and  inspection. 

I  have  already  had  practical  evidence  of  the  result  of  such  a 
state  of  the  law.  In  one  case  brought  before  me,  the  commit- 
ting magistrate  had  refused  to  let  a  party  to  bail,  who  was 
accused  merely  of  a  breach  of  the  peace;  thus  arbitrarily,  and 
as  it  was  insisted  before  me,  without  the  possibility  of  review 
or  correction,  putting  assault  and  battery  upon  an  equal  footing 
with  murder.  In  another  case  of  assault  and  battery,  the 
magistrate  had  fixed  the  amount  of  bail  at  some  $16,000,  and  I 
was  admonished  that  under  that  police  law,  I  incurred  the 
danger  of  committing  a  misdemeanor,  if  I  reduced  the  amount. 
So  that  I  was  placed  in  the  dilemma  of  running  the  hazard 
of  an  indictment  or  of  violating  my  oath  of  office  and  the  con- 
stitution, which  forbids  excessive  bail.  Of  course  I  incurred 
the  hazard,  but  not  without  some  reflection  upon  the  character 
of  legislation  which  could  thus  jeopard  personal  liberty,  and 
at  the  same  time  place  a  judge  of  the  highest  criminal  court  in 
the  state,  in  such  a  position,  that  he  could  carry  out  the  consti- 
tution only  by  incurring  the  hazard  of  becoming  himself  a 
criminal  at  his  own  bar. 

Such  cases  must  and  will  occur  again,  if  the  law  is  such  as 
to  sanction  them,  and  I  have  therefore  been  the  more  anxious 
in  my  researches,  in  order  to  ascertain  with  certainty,  whether 
such  is,  in  fact,  the  state  of  the  law  among  us. 

I  have  already  intimated  that  the  language  of  Mr.  Justice 
Gowen,  in  McLeod's  case,  was  broad,  enough  to  sustain  this 
doctrine,  and  if  that  was  an  authoritative  decision  of  the  court 
upon  the  point,  I  should  be  bound  to  obey  it  as  the  law  of  the 
land  until  it  should  be  reversed  by  an  appellate  tribunal  or 
altered  by  the  legislature.  But  fortunately  that  language  is 
entitled  to  no  such  binding  force.  That  point  was  not  before 
the  court.  The  dictum  was  obiter.  The  question  raised  there 
was,  whether,  after  indictment,  the  court  on  habeas  corpus, 
would  entertain  the  question  of  guilt  or  innocence,  and  OB  that 


NEW  YORK,  NOVEMBER,   1848. 


The  People  v.  Martin. 


question  the  authorities  had  been  very  uniform,  that  it  would 
not;  and  for  very  plain  and  simple  reasons,  that  as  the  testi- 
mony before  the  grand  jury  would  not  be  written  and  could  not 
be  looked  into,  the  court  or  officer  on  the  habeas  corpus  could 
not  ascertain  on  what  evidence  the  grand  jury  had  acted,  and 
could  not  entertain  the  question  without  receiving  precisely  the 
same  testimony  which  the  jury  would  be  obliged  to  receive  on 
the  trial,  and  thus,  in  fact,  usurp  the  province  of  the  jury. 
Hence  it  had  been  the  practice  of  the  English  courts  and  our 
own,  Which  was  followed  in  the  McLeod  case,  not  to  look  into 
this  question  of  guilt  or  innocence  on  habeas  corpus,  after 
indictment.  But  not  so  where  the  party  was  committed  by  the 
magistrate,  nor  even  where  he  was  committed  on  the  coroner's 
inquest,  because  there  were  depositions  which  could  be 
looked  into.  But  even  to  this  rule  there  were  exceptions.  Bac. 
Jlbr.  Hab.  Cor.  B.  sec.  11,  says,  that  the  court  will  sometimes 
after  indictment  examine  the  circumstances,  and  he  cites  the 
case  of  one  indicted  for  piracy  who  was  bailed  because  it 
appeared  that  it  was  the  prosecutor  himself  who  had  committed 
the  offence.  In  Rex  v.  Crips,  referred  to  in  Cunningham's 
Rep.  96,  the  party  was  bailed  because  of  a  mistake  of  the  per- 
son of  the  party  accused. 

I  do  not,  however,  understand  the  rule,  whether  it  has  few 
or  many  exceptions,  to  deny  the  power  after  indictment  to  look 
beyond  the  commitment.  It  merely  says,  that  the  court  will 
not,  not  that  it  can  not  do  so,  and  for  very  good  reasons,  as  I 
have  already  mentioned.  For  equally  good  reasons  it  may  and 
does  do  so,  as  is  shown  by  the  many  cases  where  after  delay  to 
bring  on  the  trial  of  an  indictment,  the  party  has  been  dis- 
charged or  bailed. 

This  rule,  however  stringent  it  may  be  held  to  be  after 
indictment  found,  is  by  no  means  so,  where  the  party  is  detained 
merely  on  the  warrant  of  the  committing  magistrate.  Ch.  J. 
Marshall  recognized  this  distinction  in  Burr's  case.  In  Benoit's 
case  (  1  Martin's  Lou.  R.  142),  the  court  looked  into  the  testi- 
mony to  see  whether  an  illogical  conclusion  had  not  been 
drawn.  Chitty  lays  down  the  rule  (1  Cr.  Law,  119),  where  a 


192  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Martin. 

person  committed  is  advised  that  his  commitment  is  illegal  he 
may  obtain  relief  by  habeas  corpus,  and  the  proceedings 
thereon,  which  is  the  only  course  of  proceeding.  Indeed,  wherever 
a  person  is  restrained  of  his  liberty,  by  being  confined,  whether 
it  be  for  a  civil  or  criminal  cause,  and  it  is  apprehended  that 
the  imprisonment  is  illegal,  he  may  regularly,  by  habeas  corpus, 
have  his  body  and  the  proceedings  under  which  he  is  detained, 
removed  to  some  superior  jurisdiction  having  authority  to 
examine  the  legality  of  the  commitment,  and  upon  the  return 
to  the  writ  the  court  are  to  examine  and  determine  the  legality 
of  such  commitment  and  do  what  to  justice  shall  appertain  in 
delivering,  bailing  or  remanding  him. 

And  he  adds  (page  129),  if  the  court  ascertain  there  was  no 
pretence  for  imputing  to  the  prisoner  any  indictable  offence, 
they  will  discharge  him.  Even  though  the  commitment  be 
regular,  the  court  will  examine  the  proceedings  and  if  the  evi- 
dence appear  altogether  insufficient,  will  admit  him  to  bail,  for 
the  court  will  rather  look  to  the  depositions  which  contain  the 
evidence  than  to  the  commitment  in  which  the  justice  may 
have  come  to  a  false  conclusion. 

Such  is  the  English  rule,  thus  stated  by  this  respectable 
writer  and  sustained  by  abundant  authority,  and  it  necessarily 
confers  on  this  writ  an  appellate  attribute,  and  upon  the  court 
or  officer  to  whom  it  is  returned  power  to  review  the  proceed- 
ings of  the  inferior  magistrate  on  whose  warrant  a  person  may 
be  committed. 

The  rule  is  the  same  in  this  country,  and  no  stronger  evi- 
dence of  it  need  be  given  than  the  view  which  the  United 
States  Supreme  Court  have  taken  of  it. 

That  court  has,  under  the  constitution,  original  jurisdiction 
only  in  cases  affecting  ambassadors  and  the  like,  and  those  in 
which  a  state  shall  be  a  party.  In  all  other  cases  it  has  only 
appellate  power.  The  judiciary  act  conferred  upon  it,  and 
upon  the  judges  thereof,  power  to  issue  writs  of  habeas  corpus 
—  a  power  which  they  could  not  exercise  unless  the  writ  had 
properly  an  appellate  character. 

The  question  has   frequently  been  before  that  court  and  its 


NEW  YORK,  NOVEMBER,  1848.  193 

The  People  v.  Martin. 

appellate  character  has  been  repeatedly  maintained.  (Bollman 
and  Swart  wout,  4  Cranch,  75;  Ex  part e  Kearney,!  Wheat.  42; 
Ex  parte  Wat/cins,  7  Peters,  200,  where  Ch.  J.  Marshall  says 
it  is  in  the  nature  of  a  writ  of  error  which  brings  up  the  body 
with  the  cause  of  commitment;  Ex  parte  Burford,  3  Cranch, 
447;  In  the  matter  of  Metzger,  5  Howard,  176;  Ex  parte 
Barry,  2  Howard,  65.)  It  is  an  essential  criterion  of  appellate 
jurisdiction  that  it  revises  and  corrects  the  proceedings  in  a 
cause  already  instituted,  and  does  not  create  the  cause.  (Mar- 
bury  v.  Madison,  1  Cranch,  175.)  * 

The  United  States  Supreme  Court  has  no  common  law  juris- 
diction. It  owes  all  its  powers  to  the  constitution  and  the 
statutes,  and  so  far  as  the  habeas  corpus  is  concerned,  uses  the 
writ  only  as  it  ministers  to  its  appellate  jurisdiction. 

Our  supreme  court  is,  however,  different  in  this  respect.  It 
has  all  the  common  law  powers  of  the  King's  Bench,  in  which 
this  remedial  writ  has  been  one  of  its  instruments  of  adminis- 
tering justice  for  very  many  years,  and  the  judges  out  of  court 
have  the  same  authority  conferred  on  them  by  statute. 

Under  the  common  law  powers  it  has  always  been  compe- 
tent for  the  court  in  term  to  inquire  in  the  broadest  manner 
into  the  legality  of  the  imprisonment  and  for  that  purpose  to 
go  behind  the  return.  The  books  are  full  of  such  cases,  and  the 
refusal  of  the  king  or  the  lords  in  council,  or  in  other  words 
that  courts  giving  to  the  warrant  of  the  king  and  the  star 
chamber  the  same  binding  and  controlling  force  which  in  this 
case  is  claimed  for  the  warrant  of  a  police  justice,  was  a  proli- 
fic source  of  trouble  in  the  reign  of  Charles  I,  drew  on  a  par- 
liamentary inquiry  and  produced  the  petition  of  right  (3  Car. 
1),  which  recites  this  illegal  judgment  and  enacts  that  no 
freeman  shall  be  so  imprisoned  and  detained.  (3  El.  Com. 
134.) 

The  revision  of  our  habeas  corpus  law  in  1813,  extended  its 
provisions  to  persons  detained  on  civil  process,  while  the  Eng- 
lish statute,  from  which  ours  had  been  copied,  confined  it  to 
criminal  cases. 

Our  court,  in  Cable  v.  Cooper  (15  J.  R.  152),  upon  this  new 

VOL  1.  25 


1Q4  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Martin. 

provision  of  the  statute,  gave  a  similar  construction  and  denied 
to  an  officer  or  judge  acting  upon  a  habeas  corpus  out  of  term 
the  power  of  looking  beyond  the  return.  This  decision  was 
made  in  January,  1818,  and  the  legislature,  with  commendable 
promptness  and  in  close  imitation  of  the  action  which  as  before 
mentioned,  "produced  the  petition  of  right,"  in  the  same 
session  passed  a  law  correcting  that  judgment. 

The  act  passed  April  21,  1818,  recites  that  "  Whereas  doubts 
are  also  entertained  whether  returns  made  to  writs  of  habeas 
corpus  issued  under  said  act  are  traversible  or  examinable  by 
facts  dehors  the  returns,"  and  enacts  that  the  officer  before  whom 
a  prisoner  is  brought  shall  examine  into  the  facts  contained  in 
the  return,  and  into  the  cause  of  the  imprisonment,  and  remand, 
bail  or  discharge,  as  the  case  shall  require,  and  to  justice  shall 
appertain.  (Laws  of  1818,  C/i.  277,  p.  298.)  Out  of  this 
enactment  grew  the  existing  provision  of  the  revised  statutes 
authorizing  the  prisoner  to  deny  any  of  the  material  facts  set 
forth  in  the  return,  or  allege  any  fact  to  show  that  his  detention 
or  imprisonment  is  unlawful,  or  that  he  is  entitled  to  his  dis- 
charge. (2  R.  S.  471,  §  50.)  The  note  to  3  Hill,  658,  n.  30, 
says,  that  "  when  the  return  is  that  a  party  is  detained  by  pro- 
cess, the  existence  and  validity  of  the  process  are  the  only  facts 
upon  which  issue  can  be  taken.  These  alone  are  the  material 
facts  within  §  50,  not  whether  the  process  is  founded  on  suf- 
ficient evidence  or  any  evidence  at  all."  If  this  is  so,  then  is 
the  principle  of  Cable  and  Cooper,  15  J.  R.,  restored,  the  act 
of  1818  reversing  that  case  rendered  nugatory,  and  §  50  of  our 
habeas  corpus  law  shorn  of  very  much  of  its  benignant  power. 
But  it  is  not  so.  The  cases  cited  by  the  writer  do  not  sustain 
his  position.  9  Wend.  212,  one  of  his  cases,  was  on  a  requi- 
sition from  another  state  for  a  fugitive  from  justice,  in  which 
the  court  refused  to  look  behind  the  warrant,  because  that  would 
in  effect  be  removing  the  trial  of  the  merits  from  the  other 
state  to  this.  The  case  of  McLeod,  another  one  he  cites,  I  have 
already  shown  was,  in  this  regard,  nothing  more  than  a  refusal 
of  the  court  to  go  behind  an  indictment;  and  his  remaining 
authority  (11  M.  fy  Ellis,  274  §3)  was  upon  the  power  conferred 


NEW  YORK,  NOVEMBER,    1848. 


The  People  v.  Martin. 


by  an  English  statute,  in  respect  to  which  the  court  in  that 
cause  say,  "  if  the  warrant  returned  be  good  on  the  face  of  it, 
we  can  inquire  no  farther."  Can  that  be  said  of  a  statute 
which  had  its  existence  in  a  desire  to  remove  doubts  whether 
facts  out  of  the  return  could  be  inquired  into,  and  which,  to 
effect  its  purpose,  declares  that  the  prisoner  may  allege  any 
facts  to  show  his  detention  illegal  or  that  he  is  entitled  to  his 
discharge? 

On  commitments  by  final  process  upon  summary  convictions, 
it  has  long  been  the  practice  to  examine  on  habeas  corpus  the 
record  of  conviction,  and  if  void  to  discharge  the  prisoner. 
(Regina  v.  Chancey,-  6  Dowl.  P.  C.  281,  1  Mod.  102;  In  re 
Sweatman,  1  Cow.  144,  Bac.  Abr.  Hab.  Cor.  B.  PI.  13;  In  re 
Eliza  Phillips,  5  JV.  F.  Legal  Observer,  130;  Rex  v.  Elwell,  2 
Str.  794.)  And  indeed  final  process  may  in  all  cases  be  im- 
peached by  showing  either  that  there  was  no  judgment,  decree, 
conviction,  &c.,  or  that  the  judgment,  &c.,  was  absolutely  void. 
(Randolph  Case,  11  Jim.  Jurist,  338;  Ex  part  e  Beatty,  12  Wend. 
229;  Riley's  Case,  2  Pick.  172.) 

So,  too,  where  the  warrant  was  legal  but  the  party  illegally 
arrested  upon  it,  (Pleas&nt's  Case,  11  Am.  Jurist,  257;  Ex 
parte  Beeching,  6  Dowl.  and  R.  209,)  Or  was  entitled  to  his 
discharge  by  something  occurring  after  his  arrest.  (McLeod's 
Case,  25  Wend.  572;  State  v.  Ward.  3  Hoist.  R.  120.) 

And  in  all  cases,  even  before  our  act  of  IS  18,  and  at  common 
law,  the  prisoner  before  indictment  might  insist  that  the  depo- 
sitions be  looked  into  on  habeas  corpus.  (1  Ch.  Cr.  Law,  127; 
Petersd.  on  Bail,  521;  Bac.  Abr.  Bail  in  Crim.  Ca.  D.)  For- 
merly those  depositions  could  be  brought  up  only  on  a  writ  of 
certiorari,  but  now  we  have  a  statute  directing  the  magistrate 
to  send  them  up,  on  a  mere  requisition  of  the  officer  allowing 
the  habeas  corpus. 

I  have  thus  taken  occasion  to  express  my  dissent  from  the 
doctrines  asserted  in  the  note  to  3  Hill's  Reports,  and  more 
than  once  assented  to,  though  never  directly  ruled,  by  the  late 
Judge  Cowen.  It  is  the  first  time  that  the  question  has  been 
directly  presented  for  my  adjudication,  though  it  has  been  fre- 


196  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Martin. 

quently  intimated  before  me,  and  I  have  taken  time  to  examine 
fully  into  the  matter,  because  I  consider  the  doctrine  as  striking 
a  fatal  blow  at  the  remedial  powers  of  this  great  writ,  and,  if 
once  established,  as  virtually  repealing  the  statute  which  was 
enacted  for  the  very  purpose  of  affording  against  oppression 
under  the  forms  of  law  the  same  protection  which  for  a  long 
time  had  been  secured  against  imprisonment  without  due  pro- 
cess of  law.  And  as  the  reign  of  lawless  violence  has  passed 
away  and  been  succeeded  by  times  when  it  is  chiefly  through 
the  tribunals  of  justice  that  men  seek  to  vent  their  evil  passions 
upon  one  another,  it  becomes  of  the  highest  importance  that 
this  writ  should  be  maintained  in  its  integrity,  as  it  is  thus 
alone  that  the  great  duty  of  government  can  be  discharged  of 
demanding  an  account  why  the  liberty  of  the  citizen  is  re- 
strained, wherever  that  restraint  may  be  inflicted.  (3  Bl.  Com. 
131.) 

In  thus  asserting  and  defending  the  high  prerogative  of  ad- 
ministering relief  against  unjust  imprisonment,  as  existing  in 
this  court  at  common  law  and  in  its  members  out  of  court  under 
the  statute,  I  must  not  be  understood  as  maintaining  that  the 
appellate  power  thus  conferred  can  or  will  be  exercised  in  a 
wild  or  loose  or  arbitrary  manner,  or  that  an  appeal  exists  as  a 
matter  of  course  in  every  case  of  a  commitment,  w-ith  a  right 
to  demand  a  review  of  the  grounds  of  the  commitment. 

Where  the  party  is  in  custody  by  virtue  of  a  final  judgment 
of  a  court  of  competent  jurisdiction,  he  must  be  immediately 
remanded.  (2  R.  S.  567,  §40.) 

If  the  party  is  in  custody  on  an  indictment  found  for  felony 
not  bailable,  there  being  no  means  of  ascertaining  the  grounds 
on  which  the  indictment  is  predicated,  he  will  be  remanded. 
(McLeod's  Case,  25  Wend.) 

If  in  custody  on  process  merely  irregular,  he  will  be  remanded 
on  habeas  corpus  and  be  remitted  to  the  proper  court  to  crrrect 
and  remedy  the  formal  defects  in  its  own  process.  (People  v. 
Nevins,  1  Hill,  154;  Bank  of  U.  S.  v.  Jenkins,  18  Johns.  305.) 

If  detained  on  civil  process,  regular  and  valid  on  its  face, 
the  examination  will  be  confined  to  the  jurisdiction  of  th? 


NEW  YORK,  NOVEMBER,   1848.  197 

The  People  v.  Martin. 

power  which  issued  it,  and  to  the  inquiry  whether  some  event 
has  not  since  occurred  to  entitle  the  prisoner  to  his  discharge 
(Ibid.) 

If  in  custody  on  criminal  process  before  indictment,  tne 
prisoner  has  an  absolute  right  to  demand  that  the  original 
depositions  be  looked  into  to  see  whether  any  crime  is  in  fact 
imputed  to  him,  and  the  inquiry  will  by  no  means  be  confined 
to  the  return.  Facts  out  of  the  return  may  be  gone  into  to 
ascertain  whether  the  committing  magistrate  may  not  have 
arrived  at  an  illogical  conclusion  upon  the  evidence  given  be- 
fore him,  whether  he  may  not  have  been  governed  by  malice, 
or  have  exceeded  his  jurisdiction,  and  whether  he  may  not  have 
mistaken  the  law,  or,  in  the  language  of  Lord  Ellenborough  in 
the  case  of  Sir  Francis  Burdett  against  the  Speaker  of  the 
House  of  Commons  (14  East,  1,)  to  ascertain  whether  the 
commitment  was  not  palpably  and  evidently  arbitrary,  unjust 
and  contrary  to  every  principle  of  positive  law  or  rational 
justice. 

Confined  within  these  limits,  the  inquiry  can  be  effectual  for 
the  protection  of  personal  liberty  against  oppression  under  color 
of  legal  process.  Extended  beyond  it,  it  might  be  eminently 
mischievous  in  retarding  the  due  administration  of  justice,  and 
therefore,  though  the  power  of  exceeding  those  limits  is  clearly 
conferred,  no  discreet  judge  will  step  over  them,  unless  for  soim 
palpable  and  overpowering  cause. 

I  shall  in  this  case  look  beyond  the  return  and  inquire  into 
the  cause  of  commitment,  and  I  shall  not  confine  my  inquiry 
merely  to  an  examination  of  the  depositions  which  have  been 
returned  to  me  and  for  these  reasons. 

The  warrant  which  is  returned  to  the  writ  of  habeas  corpus, 
is  a  full  commitment  for  grand  larceny  in  stealing  from  Thomas 
J.  Grossman  $40  in  gold  coin.  No  such  warrant  could  issue 
until  the  complainant  and  the  witnesses  produced  in  support  of 
the  prosecution  had  been  examined  on  oath  in  the  presence  of 
the  accused.  (2  R.  S.  708,  §  13.)  Nor  until  the  prisoner  has 
also  been  examined  in  relation  to  the  charge.  (Ibid,  §  14.) 

The  "  allegations"  put  in  by  these  prisoners  in  answer  to  the 


198  PECISiOXS  IX  CiUMLVAL  CASES. 

The  People  v.  McDaniels. 

return  and  sworn  to  by  them,  set  up  that  they  were  arrested  by 
a  person  not  a  police  officer,  that  when  taken  before  the  police 
magistrate,  they  demanded  an  examination  of  the  complainant 
in  their  presence,  which  toas  refused,  and  they  were  thereupon 
committed  in  default  of  bail. 

If  these  allegations  are  true  the  imprisonment  was  clearly 
illegal.  And  they  are  facts  out  of  the  return,  which  the  pri- 
soners have  a  right  to  allege,  and  which  it  is  my  duty  to  in- 
quire into. 


WASHINGTON  OYER  AND  TERMINER.     November,  1839.     Before 
Willard,  Circuit  Judge,  and  the  County  Judges. 

THE  PEOPLE  vs.  MCDANIELS. 

A  robbery  may  be  committed  by  extorting  personal  property,  from  the  person 
or  in  the  presence  of  the  owner,  by  means  of  threats  of  an  unfounded 
criminal  charge,  where  such  property  is  obtained  through  fear  produced  by 
such  threats. 

Where,  by  means  of  a  threat  to  arrest  the  prosecutor,  on  a  charge  of  having 
been  guilty  of  the  crime  against  nature  (the  charge  being  groundless  and 
known  to  be  so  to  the  defendant),  the  prosecutor,  through  fear  of  such 
threatened  arrest,  was  induced  to  deliver  to  the  defendant  $20  and  a  receipt 
for  $13  owed  by  the  defendant  to  the  prosecutor,  and  to  promise  to  pay  the 
defendant  $20  more,  held,  that  the  defendant  was  guilty  of  robbery  in  the 
second  degree. 

It  is  not  necessary  to  constitute  such  offence  that  the  charge  against  the  prose- 
cutor should  be  direct  or  should  be  made  in  unequivocal  language.  It  is 
enough  if  the  language  used  was  intended  to  communicate  such  a  charge  and 
was  so  understood  at  the  time  by  the  prosecutor. 

The  prisoner  was  indicted  for  robbery  in  the  first  degree, 
against  the  form  of  the  statute.  (2  R.  S.  677,  §  55.)  The  in- 
dictment also  contained  a  count  for  robbery  in  the  second  degree 
The  prosecutor  Russell  Skeele,  testified  that  he  was  67  years 
old,  and  had  resided  in  Sudbury,  Vt.,  for  37  years,  and  that  he 
had  been  acquainted  with  the  prisoner  for  three  or  four  years. 
From  his  testimony,  which  was  long  and  minute,  it  appeared 
that  in  June  preceding  the  trial,  the  prisoner  came  to  the  stable, 


WASHINGTON,  NOVEMBER.  1839. 


The  People  v.  McDaniels. 


where  the  prosecutor  had  one  of  his  mares  to  be  curried,  and 
found  the  prosecutor  with  his  pantaloons  unbuttoned  to  make 
water,  and  it  so  happened  that  a  milk  stool  stood  behind  the 
mare.  The  prisoner  as  he  came  into  the  stable  observed, 
"  How  is  this,  Uncle  Russell?  What  does  this  mean?  A  mare, 
a  stool  and  a  man  with  his  trousers  unbuttoned.  A  story 
might  be  made  of  it  that  would  hurt  you."  The  prosecutor 
explained  the  matter,  and  the  prisoner  said  he  was  satisfied, 
that  nothing  improper  had  been  done  or  intended  by  the  prose- 
cutor. 

On  a  subsequent  occasion  the  prisoner  alluded  to  the  same 
transaction,  and  observed  that  the  prosecutor  could  be  injured 
by  it,  conveying  the  idea  that  the  facts  would  warrant  the 
belief  that  the  prosecutor  had  connection  with  the  mare.  The 
prosecutor  asked  him  if  he  intended  to  injure  him?  "Oh  no," 
said  the  prisoner,  "  I  only  meant  that  some  persons  might  in- 
jure you  by  it." 

The  prosecutor  testified  that  the  prisoner  alluded  to  it  again, 
afterwards.  He  also  testified  that  the  insinuation  was  entirely 
groundless.  On  one  occasion  the  prosecutor  informed  the  pri- 
soner that  he,  the  prosecutor,  was  going  on  the  21st  August 
to  Ohio  and  Michigan  to  see  his  sons,  and  was  going  to  carry 
about  five  hundred  dollars  to  aid  them  in  discharging  incum- 
brances  from  their  land,  and  that  he  then  wanted  the  sum 
of  thirteen  dollars  from  the  prisoner,  which  the  latter  owed  him 
for  money  lent.  The  prisoner  promised  to  pay  by  the  day,  but 
failed  to  do  so. 

On  the  21st  August,  the  prosecutor  left  home  early  in  the 
morning,  came  to  Whitehall  and  took  passage  in  the  boat 
which  was  to  leave  the  next  morning  on  the  canal,  and  went 
to  bed,  on  board.  .  About  midnight  he  was  awaked  by  the  cap- 
tain, who  informed  him  there  was  a  man  on  deck  who  wished 
to  see  him.  He  got  up  and  went  out,  and  there  met  the  pri- 
soner, who  said  he  had  some  business  with  him  and  desired  him 
to  accompany  1  im  to  the  public  house.  They  left  the  boat  to- 
gether, and  after  traveling  some  distance  (30  or  40  rods),  no 
one  being  in  the  street  —  the  inhabitants  in  bed  —  the  prisoner 


200  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  McDaniels. 

stopped  and  told  the  prosecutor  to  hand  him  $500.  The  pro- 
secutor denied  that  he  had  over  $300  with  him.  The  prisoner 
v,old  him  he  must  give  him  $250  cash  and  his  nt>te  for  the  same 
amount,  or  go  back  and  suffer,  for  he  had  got  a  man  with  him 
to  assist  in  taking  him  back.  The  prisoner  also  insisted  that 
the  $13  note  should  be  given  up.  After  parleying  for  some 
time  they  went  to  the  tavern,  and  the  prosecutor  escaped  from 
the  prisoner,  but  was  overtaken.  The  prosecutor  said  to  the 
prisoner,  what  do  you  mean  in  demanding  money  of  me  in  this 
way?  I  had  as  lief  you  had  put  a  pistol  to  my  head  and  de- 
manded it  as  to  demand  it  in  the  way  you  are  doing  it.  Do 
you  think  it  right  to  take  my  money  from  me  in  this  way?  The 
prisoner  replied  that  he  felt  perfectly  clear  in  doing  it,  for  his 
God  had  told  him  to  take  $500,  for  it  would  not  distress  the 
prosecutor  or  his  family,  as  he  owed  no  body,  and  if  he  ob- 
tained the  money  he  would  go  off  and  not  trouble  him  any 
more.  The  prisoner  then  told  the  prosecutor  he  must  do  it 
immediately  or  he  should  take  him  back  —  that  he  had  a  man 
ready  with  a  horse  and  wagon,  and  I  should  suffer.  The  pro- 
secutor declined,  and  the  prisoner  said,  it  seerns  you  had  rather 
suffer  than  part  with  your  money,  and  if  you  must  suffer,  you 
must  suffer.  The  prisoner  then  walked  off  a  few  steps  and 
beckoned  as  if  to  some  person.  The  prosecutor  was  much 
frightened  and  called  the  prisoner  back,  and  said  stop,  Mr. 
McDaniels,  don't  destroy  me,  don't  hurt  me.  The  prisoner  re- 
turned, and  the  prosecutor  agreed  to  let  him  have  what  he  had 
in  his  wallet,  which  was  $20,  and  give  him  a  receipt  to  cut  off 
the  $13  note,  and  agreed  to  pay  $20  more  on  his  return,  and 
prisoner  agreed  not  to  hurt  him  or  his  family,  and  to  say  no 
more  about  it. 

The  prosecutor  swore  that  he  believed  the  prisoner,  in  his 
threats,  had  reference  to  the  charge  insinuated  against  him,  of 
having  connection  with  the  mare  in  Vermont,  and  that  he 
parted  with  his  money  out  of  fear  of  being  taken  back  and 
prosecuted  in  Vermont  on  that  charge.  That  he  was  in  feeblr 
health,  a  stranger  in  Whitehall,  and  vas  exceedingly  alarmed 

Some  other  corroborating  t^tinxon)  was  g:vca 


WASHINGTON.  NOVEMBER,  1639.  201 

The  People  v.  McDaniels. 

s 

The  prisoner's  counsel  moved  for  his  discharge,  on  the  ground 
that  the  proof  was  insufficient,  but  the  court  refused  to  grant 
the  motion.  They  then  demurred  to  the  evidence. 

The  court  intimated  that  a  demurrer  to  evidence  was  unusual 
in  criminal  cases.  That  the  party  demurring  must  not  only 
admit  the  facts  proved,  but  also  all  the  facts  which  could  be 
legally  and  properly  inferred  from  them.  The  counsel  being 
unwilling  to  do  this,  withdrew  the  demurrer  and  addressed  the 

JUI7- 
Crary,  for  prisoner. 

Allen  (Dist.  Att'y),  for  the  People. 

WILLARD,  Circuit  Judge,  after  recapitulating  the  evidence 
and  reading  the  statute  definition  of  robbery  in  the  first  and 
second  degree  (2  R.  S.  677,  §  55,  56),  said:  If  the  jury  believe 
that  the  prisoner  intended  to  communicate  to  the  prosecutor 
the  idea  that  he  was  to  be  taken  back  to  Vermont,  on  a  charge 
of  having  had  sexual  connection  with  his  mare,  unless  he  de- 
livered his  money,  and  the  prosecutor  parted  with  his  money 
through  fear  of  that  charge  being  made  against  him  when  taken 
back  to  Vermont,  the  offence  amounts  to  robbery  in  the  second 
degree. 

The  prisoner  did  not,  in  explicit  terms,  make  any  direct 
charge  against  the  prosecutor;  nor  is  it  necessary  that  he 
should  do  so,  in  unequivocal  language,  or  in  any  particular 
form.  It  is  enough  if  the  language  he  used  was  intended  to 
communicate  such  a  charge,  and  was  so  understood  at  the  time 
by  the  prosecutor. 

The  jury  found  him  guilty  of  robbery  in  the  second  degree, 
and  he  was  sentenced  to  state  prison  for  six  years  and  six 
months. 

NOTE.— See  1  Leach's  Cr.  Cases,  278;  1  Russ.  $•  Ryan,  145,  375,  408. 

VOL.  I.  26 


202  DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     Albany  General  Term,  September,  1850 
Watson,  Parker  and  Wright,  Justices. 

THE  PEOPLE  vs.  ABRAHAM  STEIN  and  al. 

In  an  indictment  for  having  feloniously  received  certain  goods  and  chattels  which 
had  been  embezzled,  knowing  them  to  have  been  embezzled,  it  is  not  neces 
sary  to  aver  that  the  person  embezzling  was  the  clerk  or  servant  of  the 
owner  of  the  goods  and  chattels. 

In  a  criminal  case,  one  good  count  is  sufficient  to  support  a  general  verdict  of 
guilty,  though  the  other  counts  in  the  indictment  are  defective. 

Where  several  persons  are  indicted  for  feloniously  receiving  embezzled  goods, 
knowing  them  to  have  been  embezzled,  all  who  are  proved  to  have  con- 
federated in  the  transaction  may  be  convicted,  though  the  receiving  was  at 
different  times  and  places,  and  though  all  were  not  present. 

Certiorari  to  the  court  of  sessions  of  Albany  county.  The 
defendants  were  indicted  in  the  court  of  sessions  of  the  offence 
of  embezzlement.  There  were  two  counts  in  the  indictment. 

The  first  count  set  forth  that  Abraham  Stein,  Israel  Stein, 
and  John  Myers,  late  of  the  city  of  Albany,  in  the  county  o  f 
Albany,  &c.,  being  persons  of  evil  name  and  fame  and  of  dis- 
honest conversation,  and  common  buyers  and  receivers  of  stolen 
goods,  on,  &c.,  with  force  and  arms,  at,  &c.,  one  detached  lever 
watch  of  the  value  of  twelve  dollars,  one  hunting  lever  watch 
of  the  value  of  fifteen  dollars,  one  watch  of  the  value  of  thirteen 
dollars,  one  lepine  watch  of  the  value  of  nine  dollars,  two 
lepine  watches  of  the  value  of  eight  dollars  each,  &c.,  &c., 
(enumerating  several  hundred  articles  of  jewelry  and  other 
property)  of  the  goods  and  chattels  of  Lewis  Goldsmith,  by 
Moses  Barks,  then  lately  before  feloniously  embezzled  of  the 
said  Lewis  Goldsmith,  unlawfully,  unjustly  and  feloniously  did 
receive  and  have  (the  said  Abraham  Stein,  Israel  Stein,  and 
John  Myers,  then  and  there  well  knowing  the  said  goods  and 
chattels  to  have  been  feloniously  embezzled),  to  the  great  da- 
mage of  the  said  Lewis  Goldsmith,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
of  the  people  of  the  state  of  New  York  and  their  dignity. 


ALBANY,  SEPTEMBER,  1850. 


The    Pople  v.  Stein. 


The  second  count  charged  a  receiving  of  stolen  property, 
alleging  that  the  defendant,  on,  &c.,  at,  &c.,  one  detached  lever 
watch  of  the  value  of  twelve  dollars,  &c.  (enumerating  the 
same  property  as  in  the  first  count),  of  the  goods  and  chattels 
of  Lewis  Goldsmith,  by  Moses  Barks,  then  lately  before  felo- 
niously stolen  of  said  Moses  Barks,  unlawfully,  unjustly  and 
feloniously,  did  receive  and  have  (the  said  Abraham  Stein, 
Israel  Stein  and  John  Myers,  then  and  there,  well  knowing  the 
said  goods  and  chattels  to  have  been  feloniously  stolen)  to  the 
great  damage,  &c.,  contrary,  &c.,  against,  &c. 

The  defendants  pleaded  not  guilty,  and  the  cause  was  tried 
before  Parmelee,  county  judge,  and  the  justices  of  the  sessions 
on  the  14th  May,  1850. 

And  on  the  trial  the  prosecution  to  sustain  the  indictment 
examined  several  witnesses,  and  the  defendants  also  examined 
several  witnesses;  and  the  evidence  in  the  cause  having  been 
closed,  the  counsel  for  the  defendants  insisted  before  said  court, 
that  the  defendants  could  not  be  convicted  under  either  count 
of  said  indictment,  for  the  following  among  other  reasons,  that 
is  to  say: 

1.  Because,  although  the  evidence  shows  that  Moses  Barks 
was  clerk  and  servant  of  Lewis  Goldsmith,  yet  the  first  count 
of  the  indictment  does  not  aver  that  fact. 

2.  Because  in  an  indictment  for  receiving  goods  knowing 
them  to  be  embezzled,  the  indictment  must  state  the  substan- 
tive fact  that  such  embezzlement  was  committed  by  a  clerk  or 
servant. 

But  the  court  held  otherwise,  and  decided  that  the  first  count 
of  said  indictment  was  good,  valid  and  sufficient  without  such 
substantive  fact  being  stated  or  averred,  to  which  decision  of 
the  court  the  counsel  for  the  defendants  did  there  and  then 
except. 

And  the  counsel  for  the  defendants  did  further  insist  and 
lequest  the  said  court  to  decide  that  the  second  count  of  said 
indictment  was  not  supported  by  the  evidence,  in  that  it  \r  as 
shown  that  the  property  mentioned  and  described  therein  was 
not  feloniously  stolen  of  Moses  Barks,  but  of  Lewis  Goldsmith, 


204  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Stein. 

if  feloniously  stolen  at  all,  but  the  court  then  and  there  held 
and  decided  the  words,  "  of  said  Moses  Barks"  were  a  clerical 
error  or  might  be  stricken  out  or  disregarded  as  surplusage. 

To  which  decision  of  the  court  the  counsel  for  the  defendants 
did  then  and  there  except. 

The  counsel  for  the  prosecution  and  for  the  defendants  then 
summed  up  the  case  to  the  jury,  and  the  county  judge  charged 
the  jury. 

The  defendants'  counsel  then  requested  the  court  to  charge 
the  jury  that  the  defendants  could  not  be  convicted  under  the 
first  count  in  the  indictment,  because  it  is  not  averred  therein 
that  Moses  Barks  was  a  clerk  or  servant  of  Lewis  Goldsmith, 
and  that  the  property  he  is  charged  with  embezzling  came  to 
his  possession  or  under  his  care  by  virtue  of  such  employment, 
and  that  such  averment  in  substance  is  necessary  to  render  the 
indictment  good  against  the  defendants  as  receivers  of  embez- 
zled property. 

But  the  court  charged  the  jury  otherwise,  and  decided  that 
the  first  count  of  said  indictment  was  good,  valid  and  sufficient 
against  the  defendants  as  receivers  of  embezzled  property.  To 
which  decision  and  charge  of  the  court  the  counsel  for  the 
defendants  excepted. 

And  the  counsel  for  the  defendants  further  requested  the 
court  to  charge  the  jury  that  the  defendants  could  not  be  con- 
victed under  the  second  count  in  the  indictment,  because  such 
count  was  not  supported  by  the  evidence,  by  which  it  appeared 
that  the  property  described  therein  was  not  feloniously  stolen 
of  Moses  Barks,  but  of  Lewis  Goldsmith,  if  feloniously  stolen 
at  all,  but  the  court  refused  so  to  charge,  and  charged  that  the 
words  "  of  said  Moses  Barks"  in  said  second  count  were  a 
clerical  error  and  might  be  disregarded  as  surplusage.  To  which 
decision  the  counsel  for  the  defendants  excepted. 

The  counsel  for  the  defendants  further  requested  the  court  to 
charge  the  jury  that  the  indictment  being  a  joint  indictment 
against  all  the  defendants,  a  joint  act  of  receiving  must  be 
proved  against  all  in  order  to  convict  all;  but  the  court  refused 
BO  to  charge,  and  charged  as  follows:  "  If  the  jury  believe  that 


ALBANY,  SEPTEMBER,  1830.  205 

The  People  r.  Stein. 

any  one  of  the  defendants  was  guilty  of  receiving,  &c.,  he  could 
be  convicted  under  this  indictment;  and  that  all  whom  the  jury 
believed  to  have  so  received  the  property  could  be  convicted 
upon  this  indictment  and  under  the  evidence  in  the  case,  though 
the  receiving  was  at  different  times  and  places,  and  that  al- 
though all  the  defendants  were  not  present."  To  which  refusal 
to  charge  the  counsel  for  the  defendants  excepted. 

The  jury  gave  a  general  verdict  of  guilty  against  all  the 
defendants. 

A.  J.  Colvin,  for  the  defendants. 

I.  The  first  count  of  the  indictment  is  bad,  and  the  court  of 
sessions  erred  in  deciding  that  it  was  valid,  and  that  the  defend- 
ants could  be  convicted  upon  it.     1.  Because  embezzlement,  as 
a  felony,  is  a  statutory  offence;  and  it  is  such  felony  only,  when 
committed  by  a  clerk,  agent,  servant  or  officer.     It  is  indispen- 
sable, therefore,  to  aver  that  the  embezzlement  was  committed 
by  a  clerk,  agent,  servant  or  officer.    (  People  v.  Mien,  5  Denio, 
70;  Wheaton's  Cr.  L.  273;  2  R.  S.  3d  ed.  764,  §59.)     2.  And 
because,  in  the  structure  of  an  indictment  for  receiving  property 
embezzled,  it  is  necessary  to  aver  that  it  was  embezzled  con- 
trary to  the  statute  (2  R.  S.  3d.  ed.  p.  765,  §61;)  in  other 
words,  to  aver  that  the  property  received  was  embezzled  by  a 
clerk,  agent,  servant  or  officer. 

II.  The  second  count  of  the  indictment  was  not  sustained  by 
the  evidence,  and  the   exceptionable   matter   should  not  be 
treated  as  surplusage. 

III.  The  defendants  having  been  convicted  upon  both  counts 
of  the  indictment,  are  entitled  to  a  new  trial.     1.  Because  the 
party  will  be  entitled  to  a  new  trial,  if  the  court  committed  an 
error  in  law,  which  possibly  may  have  operated  to  his  prejudice. 
(Coles  v.  Marquand,  3  Hill,  447.)     2.  Because,  in  a  criminal 
case,  the  important  and   controlling  question   is,  whether  any 
error  has  been  committed  which  could  affect  the  rights  of  the 
accused.     If  there  has  been  such  error,  however  slight  it  may 
have  been,  the   conviction  should   be   set   aside.    (People  v 


206  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Stein. 

Lohman,  2  Barb.  221.)  3,  Because,  in  this  case,  a  discretion 
is  allowed  the  court  in  passing  sentence.  It  may  sentence  for 
two  years  on  the  first  count,  and  three  years  on  the  second 
count,  or  vice  versa;  and  a  general  judgment  for  the  prosecution 
on  an  indictment  containing  two  or  more  counts,  either  of 
which  is  bad,  and  where  the  punishment  is  not  definitely  pre- 
scribed by  law,  can  not  be  sustained.  (O'Connell  and  others 
v.  The  Queen,  1 1  Clarke  and  Finnelly's  Parliam  entary  Reports, 
155.) 

IV.  The  court  of  sessions  was  bound  to  charge  as  requested, 
viz:  "That  the  indictment  being  a  joint  indictment  against  all 
the  defendants,  a  joint  act  of  receiving  must  be  proved  against 
all,  in  order  to  convict  all."     (Rex  v.  Messingham,  1  Moody's 
C.  C.  257;  Rex  v.  Jlrcher;  Ibid.  143.)     1.  Because,  being  an 
averment  ©f  the  indictment,  it  was  a  fact  to  be  affirmatively 
shown  on  the  part  of  the  prosecution,  and  was  indispensable  to 
be  found,  before  the  jury  could  convict.     2.  Because  the  de- 
fendants were  entitled  to  the  benefit  of  the  charge,  whatever 
was  the  nature  and  degree  of  the  evidence.     3.  This  was  emi- 
nently a  proper  case  for  the  court  so  to  charge;  and  a  bill  may 
be.  taken,  if,   in   a  proper  case,   the  court  refuse  to   give  an 
opinion  to  the  jury.     (Douglass  v.  McJllister,  3  Cranch,  300; 
Smith  v.  Carrington,  4  do.  60,  62;  2  Dana,   242;  2  Jlikens, 
115.) 

V.  If  the  refusal  to  charge  was  erroneous,  the  charge  itself 
was  much  more  so.     1.  Because  (immediately  following  the 
refusal)  it  was  calculated,  nay,  such  was  its  inevitable  effect, 
to  mislead  the  jury;  for  it  was  not  correct,  that  all  the  defend- 
ants who  received  the  property,  could  be  convicted,  though  the 
receiving  was  at  different  times  and  places,  and  that  although 
all  the  defendants  were  not  present.  2.  The  charge  would  have 
been  correct,  had  the  indictment  contained  separate  counts,  for 
receiving  against  each  defendant;  but  being  a  joint  indictment, 
it  can,  upon  no  principle,  be  sustained,     (1  Moody  C.  C.  257; 
"  Carr.  and  P.  796;  32  Eng.  C.  Law  Rep.  589.)     3.  Again,  it 
is  erroneous,  because  the  court   assumed  that  the  defendants 
were  confederates;  a  fact  which   should  have  been  left  to  the 


ALBANY,  SEPTEMBER,   1850.  207 

The  People  v.  Stein. 

jury  to  find.  4.  Because  the  defendants  could  not  be  confede- 
rate, unless  they  were  all  present,  actually  or  constructively 
aiding,  abetting  and  assisting.  ( 1  Russell  on  Crimes,  25  to  27, 
ed.  1845;  Com.  v.  Knapp,  9  Pick.  496;  King  v.  Borthwick, 
Doug.  207.)  5.  Because  the  jury  were  charged  to  convict,  if 
they  found  a  separate  receiving  of  goods  embezzled,  or  goods 
stolen;  in  other  words,  that  they  were  at  liberty  to  convict, 
under  either  count  of  the  indictment,  and  consequently  under 
the  first  count,  which  is  clearly  a  bad  count. 

S.  H.  Hammond  (district  attorney),  for  the  people. 

I.  The  first  count  in  the  indictment  charges  that  the  defend- 
ants received  the  goods  of  Barks  with   the  knowledge    that 
Barks  had  embezzled  them.     The  crime  charged  is  receiving 
them  with  a  guilty  knowledge  of  the  embezzlement.     The  fact 
that  the  goods  had  been  embezzled  it  was  necessary  to  state  in 
the  indictment,  but  not  the  evidence  of  the  fact.     It  need  not 
allege  the  facts  necessary  to  be  stated  in  an  indictment  for 
embezzlement,  because  embezzlement  is  not  the  crime  charged 
against  the  defendant.     (Wharton's  American  Criminal  Law, 
420;  2  Blackford  103.) 

II.  The  second  count  is  good,  because  1.  If  the  reading  is  as 
claimed  by  the  defendants,  the  words  "of  Moses  Barks  "  is  a 
clerical  error  and  may  be  stricken  out  as  surplusage.  ( 1  Leach, 
109,  477.)     2.  The  defect,  if  any,  is  not  one  that  can  preju- 
dice the  defendants.     3.  But  the  reading  is  not  as  claimed  by 
the  defendants;  a  false   punctuation  is  resorted  to,  to  give  it 
that  reading.     The  allegation  in  fact  is,  that  the  defendants 
received  the  goods  of  Moses  Barks,  as  will  be  understood  by 
placing  a  comma  after  the  word  "  stolen"  in  the  indictment. 

III.  The  charge  of  the  judge  was  correct.     Every   indict- 
ment, where  there  are  more  than  one  defendant,  is  joint  and 
several.     Three  persons  are  indicted  for  robbery,  one  may  be 
convicted  and  one  may  be  acquitted. 

IV.  The  judge's  charge  properly  understood,  simply  amounts 
to  this,  1.  If  the  jury  believed  that  only  one  of  the  defendants 


208  DECISIONS  IN  CRIMINAL  CASES.  *  . 

The  People  ».  Stein. 

received  the  goods  with  a  guilty  knowledge,  they  could  convict 
him  and  acquit  the  others.  2.  If  they  believed  two  of  them 
received  the  goods,  they  could  convict  those  two  and  acquit  the 
other,  and  that  it  was  not  necessary  in  order  to  convict  the  two 
to  prove  that  all  the  persons  indicted  were  present  at  such 
receiving.  That  the  two  could  be  convicted  though  part  of  the 
goods  was  received  by  them  at  one  time  and  place,  and  a  part 
of  them  was  received  at  another  time  and  place. 

V.  The  judge's  charge  was  in  substance  what  the  counsel 
asked  him  to  charge,  and  he  need  not  adopt  the  language  of 
the  counsel. 

VI.  Our  statutes  alter  the  English  rule  in  regard  to  criminal 
trials.     Here  indictments  which  are  joint  may  be  tried  sepa- 
rately as  against  each  defendant,  and  if  tried  jointly  the  verdict 
as  to  each  will  be  the   same  as  though  the  trial   had   been 
several. 

Suppose  these  prisoners  had  been  tried  separately,  and  an 
act  of  receiving  had  been  proved  against  the  one  first  tried, 
clearly  he  could  have  been  convicted.  Suppose  when  the 
second  one  came  to  be  tried,  another  act  of  receiving  had  been 
proved  against  him,  clearly  he  could  not  escape  because  others 
were  joined  with  him  in  the  indictment,  nor  because  the  one 
first  tried  had  been  convicted  —  and  so  when  the  third  came 
on  to  be  tried.  Hence  we  say 

VII.  That  a  joint  receiving  by  all  need  not  be  proved.     (7 
Carrington  Sf  Payne,  475;    1  Moody,  143;   1  Carr  4"  Kennin, 
442;  Russ  Sf  Ry.  Cro.  Cas.  520;   White's  Am.  Cr.  Law,  419; 
Cow.  &  HiWs  notes,  1050.) 

PARKER,  J. — The  first  count  charges  that  the  defendants  did 
unlawfully,  unjustly  and  feloniously  receive  certain  personal 
property  of  the  goods  and  chattels  of  Lewis  Goldsmith,  which 
had  been  feloniously  embezzled  of  the  said  Lewis  Goldsmith 
by  Moses  Barks,  the  said  defendants  at  the  time  well  knowing 
the  said  goods  and  chattels  to  have  been  feloniously  embez- 
zled, &c.  It  is  objected  that  this  count  is  defective  in  not 
alleging  that  Moses  Barks  was  the  clerk  or  servant  of  Lewis 


ALBANY,  SEPTEMBER,  1800.  399 

The  People  v.  Stein. 

Goldsmith.  Such  an  averment  would  certainly  be  necessary  iu 
an  indictment  against  Barks  for  the  embezzling.  (People  v. 
Allen,  5  Denio,  76.)  So  would  an  averment  of  time  and  place 
in  larceny.  But  it  has  been  decided  that  an  averment  of  the 
time  and  place  of  a  larceny  is  not  necessary  in  an  indictment  for 
receiving  the  stolen  goods.  ( 12  Blackford  R.  103.)  The  same 
averments  are  not  necessary  in  an  indictment  for  receiving  stolen 
or  embezzled  goods  which  are  necessary  in  an  indictment  for 
stealing  or  embezzling.  In  an  indictment  for  receiving  embez- 
zled goods,  the  facts  necessary  to  be  averred  are  the  felonious 
embezzling  and  the  felonious  receiving.  In  such  case,  I  think,  an 
allegation  of  such  felonious  embezzling  and  receiving  with  a 
description  of  the  property  and  the  name  of  the  owner  as  well 
as  of  the  person  embezzling,  is  sufficient,  without  setting  out  the 
particular  relation  existing  between  the  owner  and  the  person 
embezzling.  The  means  by  which  the  embezzling  was  accom- 
plished need  not  be  stated  in  an  indictment  for  receiving.  It 
is  by  means  of  the  peculiar  relation  existing,  that  access  is 
obtained  and  the  property  converted.  An  allegation  of  a  felo- 
nious embezzlement  includes  within  it  and  covers  all  the 
minor  circumstances  which  go  to  make  up  the  offence.  They 
are  matters  of  proof  necessary  to  support  the  general  allegation 
put  in  issue  by  the  plea  of  not  guilty.  We  think  the  objection 
to  the  first  count  was  not  well  taken. 

But  if  we  are  wrong  on  this  point,  it .  is  not  a  reason  for 
reversing  the  judgment^  if  the  second  count  is  good.  We  can 
not  follow  the  decision  of  the  English  House  of  Lords  in 
0' Council  and  al.  v.  The  Queen.  (11  Clark  fy  Fin,  155.)  That 
case  was  decided  by  the  Law  Lords  by  a  vote  of  3  to  2  and 
adversely  to  the  opinions  of  the  majority  of  the  judges  of  Eng- 
land, who  were  consulted.  In  this  state,  the  law  has  been 
regarded  as  well  settled,  and  it  has  been  repeatedly  held,  that 
in  a  criminal  case  one  good  count  is  sufficient  to  support  a 
general  verdict  of  guilty,  however  defective  the  others  may  be. 
(1  Ch.  Cr.  L.  249;  Am.ed.  of  1836,  ib.  638;  People  v.  Curling, 
1  Johns.  R.  320;  People  T.  Wiley,  3  Hill  R.  194.)  Though 

VOL.  L  27 


210 


DECISIONS  IN  CRIMIKA-.   CASES. 


The  People  v.  Stein. 


the  law  is  otherwise  in  a  civil  case,  for  ti  e  reason  that  dama- 
ges are  given  by  the  jury,  and  being  entire,  the  court  can  not 
apportion  them. 

There  was  no  valid  objection  to  the  form  of  the  second 
count.  If  properly  punctuated,  it  alleged  tie  stealing  from 
Lewis  Goldsmith,  and  the  receiving  from  Mose;.  Barks.  With 
this  reading  of  the  count,  it  is  not  denied  but  it  was  supported 
by  the  evidence. 

The  court  below  was  asked  to  charge,  that  the  indictment 
being  joint  against  all  the  defendants,  a  joint  act  must  be 
proved  against  all  in  order  to  convict  all.  The  court  refused 
so  to  charge  and  the  defendants  excepted. 

This  proposition  standing  alone  and  unexplained  was 
undoubtedly  correct;  but  it  must  be  taken  and  considered  as 
qualified  by  what  the  court  did  charge,  viz.:  that  if  the  jury 
believed  that  any  one  of  the  defendants  was  guilty  of  receiving, 
&c.,  he  could  be  convicted  under  the  indictment;  and  that  all 
whom  the  jury  believed  to  have  so  received  the  property  could 
be  convicted  upon  the  indictment  and  under  the  evidence  in 
the  case,  though  the  receiving  was  at  different  times  and  pla- 
ces and  although  all  the  defendants  were  not  present. 

The  whole  taken  together  shows  clearly  that  the  question 
made  was,  whether,  to  convict  all,  it  was  necessary  that  all 
should  be  present  at  one  time  and  place,  engaged  in  the  receiv- 
ing. And  the  court  rightly  held,  that  all  whom  the  jury 
believed  to  have  so  received  the  property,  that  is,  all  who 
were  proved  to  have  confederated  in  the  transaction,  could  be 
convicted,  though  the  receiving  was  at  different  times  and 
places,  and  although  all  the  defendants  were  not  present.  The 
question  of  the  confederacy  of  the  defendants  was  thus  fairly 
submitted  to  the  jury,  and  if  that  was  established,  those  absent 
as  well  as  those  present,  were  equally  guilty.  And  if  all  con- 
federated for  the  purpose  of  the  transaction,  and  it  was  accom- 
plished, though  at  different  times  and  places,  sometimes  a  part 
of  the  confederates  being  present  and  sometimes  others,  there 
is  no  doubt  all  were  properly  conv'cted. 


ALBANY.   FEBRUARY,   1851.  211 

The  People  r.  Burroughs. 

We  think  there  was  no  error  committed  in  the  court  of  ses- 
sions, and  the  proceedings  in  that  court  must  therefore  be 
affirmed  and  the  case  remitted,  that  judgment  may  be  given  in 
accordance  with  the  verdict. 

Proceedings  affirmed. 


SUPREME  COURT.     Albany  General  Term,  February,  1851, 
Harris,  Parker  and  Watson,  Justices. 

THE  PEOPLE  vs.  DANIEL  BURROUGHS. 

Form  of  an  indictment  for  perjury  in  falsely  swearing  that  usury  was  taken  in 
discounting  a  promissory  note. 

Where  it  does  not  appear  on  the  face  of  the  record,  by  the  statement  of  the  is- 
sue and  evidence  in  the  indictment,  that  the  matter  alleged  to  be  false  is 
material,  it  is  sufficient  to  aver  in  the  indictment  that  the  matter,  in  relation 
to  which  perjury  is  assigned,  became  and  was  material  upon  the  trial. 

Where  in  a  suit  brought  by  a  bank  on  a  promissory  note,  the  defendant  had 
testified  as  a  witness  in  behalf  of  the  endorser,  that  F.,  who  at  that  time 
was  president  of  the  bank,  had  taken  usury  in  discounting  the  note,  it  was 
held,  on  a  trial  of  the  defendant  for  perjury  in  giving  such  testimony,  that 
it  was  not  necessary  to  set  forth  in  the  indictment  that  F.  was  acting  in  the 
transaction  as  an  officer  of  said  bank,  or  in  what  particular  way  he  was 
connected  with  the  transaction,  but  that  it  was  sufficient  in  the  indictment  to 
allege  that  it  became  a  material  matter  and  question,  &c.,  whether  the  said 
F.  discounted  said  note,  and  whether  he  took  usury  in  discounting  it,  and 
then  to  set  forth  particularly  the  testimony  of  the  defendant  on  those  points 
and  the  facts  as  they  actually  existed,  which  were  inconsistent  with  such 
testimony,  with  the  usual  allegations  of  falsity  and  corrupt  intent. 

An  averment  in  an  indictment  that  the  defendant  was  sworn  as  a  witness 
between  the  bank  and  J.  B. ,  is  sustained  by  proof  that  the  defendant  was 
sworn  in  a  suit  brought  by  the  bank  on  a  promissory  note  against  J.  B.,  the 
endorser,  and  S.  McF.  and  the  defendant,  as  joint  makers,  the  evidence  of 
the  defendant  in  such  case  being  only  available  in  behalf  of  the  endorser. 

This  case  was  brought  up  by  certiorari  from  the  Rensselaer 
Oyer  and  Terminer.     The  indictment  there  found  was  as  fol 
lows: 


212  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Burroughs. 

County  of  Rensselaer,  ss.  The  jurors  for  the  people  of  the 
state  of  New  York,  in  and  for  the  body  of  the  county  of  Rens- 
selaer, to  wit:  Jason  Burrell,  &c.,  then  and  there  being  sworn 
and  charged  to  inquire  for  the  said  people  for  the  body  of  the 
county  of  Rensselaer  aforesaid,  upon  their  oath  present  that 
heretofore,  to  wit,  on  the  twenty-fourth  day  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty,  at  the 
city  of  Troy,  in  the  county  of  Rensselaer  aforesaid,  before  the 
honorable  William  B.  Wright,  one  of  the  justices  of  the  supreme 
court  of  the  state  of  New  York,  at  the  term  of  said  supreme 
court  held  by  and  before  the  said  William  B.  Wright  (so  be- 
ing one  of  the  justices  aforesaid),  in  and  for  the  said  county  of 
Rensselaer,  on  the  third  Monday  of  January  in  the  year  last 
aforesaid,  and  continued  to  and  upon  the  said  twenty-fourth 
day  of  January,  in  the  year  last  aforesaid,  a  certain  action  in 
said  supreme  court  between  the  president,  directors  and  com- 
pany of  the  Bank  of  Lansingburgh,  plaintiffs,  and  Daniel  Bur- 
roughs, Samuel  McFarland  and  John  Burroughs,  defendants, 
upon  a  certain  promissory  note,  in  the  words  and  figures  fol- 
lowing, to  wit: 

CAMBRIDGE,  Jan.  22,  1849. 

Twenty-five  days  from  date  we  promise  to  pay  to  the  order 
of  John  Burroughs  two  thousand  dollars  at  the  Lansingburgh 
Bank  for  value  received. 

Daniel  Burroughs, 
Samuel  McFarland, 
and  endorsed:  John  Burroughs. 

And  certain  issues  of  fact  in  the  said  action  came  on  to  be 
tried  in  due  form  of  law,  and  were  then  and  there  tried  by  a 
jury  of  the  county  in  that  behalf  duly  sworn  and  taken  between 
the  parties  aforesaid  to  said  action,  upon  which  said  trial  Daniel 
Burroughs  late  of  the  town  of  Cambridge  and  in  the  county 
of  Washington,  laborer,  then  and  there  to  wit,  on  the  said 
twenty-fourth  day  of  January,,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty,  appeared  as  a  witness  for  and 
in  behalf  of  the  said  John  Burroughs,  one  of  the  said  defend- 
ants in  said  action,  and  was  then  and  there  duly  sworn  and 


ALBANY,  FEBRUARY,  1S51.  213 

The  People  v.  Burroughs. 

took  his  corporal  oath  to  and  before  the  said  William  B. 
Wright,  justice  as  aforesaid,  that  the  evidence  which  he,  the  said 
Daniel  Burroughs,  should  give  to  the  said  court  and  to  the  said 
jury,  so  sworn  as  aforesaid,  touching  the  matters  then  and  there 
in  question,  between  the  said,  the  president,  directors  and  com- 
pany of  the  Bank  of  Lansingburgh  and  the  said  John  Burroughs, 
should  be  the  truth,  the  whole  truth  and  nothing  but  the  truth, 
the  said  William  B.  Wright  then  and  there  being  one  of  the 
justices  of  the  supreme  court,  and  then  and  there  having  full 
power  and  authority  to  hoH  said  court  at  the  time  and  place 
aforesaid,  and  then  and  there  having  jurisdiction  of  the  said 
action  and  the  issues  aforesaid,  and  having  power  and  author- 
ity then  and  there  to  try  the  same,  and  then  and  there  having 
full  and  sufficient  power  and  authority  to  administer  the  said 
oath  to  the  said  Daniel  Burroughs  in  that  behalf  and  so  as  afore- 
said to  swear  the  said  Daniel  Burroughs. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do 
further  present  that  at  and  upon  the  said  trial  of  the  said  action 
and  of  the  said  issues  therein,  it  then  and  there  became  and 
was  a  material  matter  and  question  between  the' said,  the  pre- 
sident, directors  and  company  of  the  Bank  of  Lansingburgh, 
plaintiffs,  and  the  said  John  Burroughs,  one  of  said  defendants 
in  said  action  (the  said  John  Burroughs  being  complained 
against  in  said  action  by  said  plaintiffs  as  endorser  of  said 
promissory  note  upon  which  said  action  was  brought  as  afore- 
said), whether  John  S.  Fake  discounted  the  said  note  above 
recited,  and  upon  which  said  action  was  brought,  and  also 
whether  the  said  Daniel  Burroughs  paid  to  the  said  John  S. 
Fake,  at  the  time  of  the  discounting  of  said  note  above  recited 
and  upon  which  said  action  was  brought,  any  sum  of  money 
over  and  above  the  lawful  interest  and  discount  upon  said  note 
last  mentioned,  and  also  whether  the  said  John  S.  Fake  dis- 
counted the  note  for  the  renewal  of  which  the  said  note  above 
recited  and  upon  which  said  action  was  brought  was  given; 
and  also  whether  the  said  Daniel  Burroughs  paid  to  the  said 
John  S.  Fake,  at  the  time  of  the  discounting  of  the  said  note 
for  the  renewal  of  which  the  said  note  above  recited  and  upon 


214 


DECISIONS  IN  CRIMINAL  CASEb. 


The  People  t.  Burroughs. 


which  said  action  was  brought  was  given,  any  sum  of  money 
over  and  above  the  lawful  interest  and  discount  upon  the  said 
note  for  the  renewal  of  which  the  said  note  above  recited  and 
upon  which  said  action  was  brought  was  given. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do 
further  present  that  the  said  Daniel  Burroughs,  with  force  and 
arms  then  and  there,  to  wit:  On  the  said  twenty -fourth  day  of 
January,  in  the  year  aforesaid,  and  at  the  city  of  Troy  aforesaid, 
being  so  sworn  as  aforesaid,  and  not  having  the  fear  of  God 
before  his  eyes  nor  regarding  the  laws  of  the  state  of  New 
York,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil  and  contriving  and  intending  to  prevent  the  due  course  of 
law  and  justice  and  unjustly  to  aggrieve  the  said,  the  president, 
directors  and  company  of  the  Bank  of  Lansingburgh,  plaintiffs, 
as  aforesaid,  and  to  cause  a  decision  to  be  made  on  the  trial 
aforesaid  against  the  said,  the  president,  directors  and  company 
of  the  Bank  of  Lansingburgh,  and  in  favor  of  the  said  John 
Burroughs,  one  of  said  defendants,  and  thereby  to  subject  the 
said,  the  president,  directors  and  company  of  the  Bank  of  Lan- 
singburgh to  the  payment  of  sundry  heavy  costs,  charges  and 
expenses,  then  and  there  on  the  said  trial,  upon  his  oath  afore- 
said, falsely,  corruptly,  knowingly,  willfully,  maliciously  and 
feloniously,  before  the  said  court  and  before  said  jurors  so  sworn 
as  aforesaid,  did  depose,  testify  and  swear,  amongst  other  things, 
in  substance  and  to  the  effect  following,  that  is  to  say:  That 
John  S.  Fake  [the  said  John  S.  Fake  meaning]  discounted  this 
note  [meaning  the  said  note  above  recited  and  upon  which  said 
action  was  brought],  and  that  he  [the  said  Daniel  Burroughs 
meaning]  paid  him  [the  said  John  S.  Fake  meaning]  the  in- 
terest on  this  note  and  seven  dollars  [meaning  at  the  time  of 
the  discounting  of  said  note  above  recited  and  upon  which  said 
action  was  brought  the  sum  of  seven  dollars  over  and  above  the 
lawful  interest  and  discount  upon  said  note  last  named]  and 
that  John  S.  Fake  [the  said  John  S.  Fake  meaning]  discounted 
the  note  for  which  this  was  a  renewal  [meaning  discounted  the 
note  for  the  renewal  of  which  the  said  note  above  recited  and 
upon  which  said  action  was  brought  was  given],  and  that  he 


ALBANY,  FEBRUARY,   1831.  215 

The  People  v.  Burroughs. 

[the  said  Daniel  Burroughs  meaning]  paid  him  [the  said  John 
S.  Fake  meaning]  ten  dollars  over  and  above  the  interest 
[meaning  at  the  time  of  the  discounting  of  said  nole  for  the 
renewal  of  which  the  said  note  above  recited  and  upon  which 
said  action  was  brought  was  given]  the  sum  often  dollars  over 
'nd  above  the  lawful  interest  and  discount  upon  the  said  note, 
f',r  the  renewal  of  which  the  said  note  above  recited  and  upon 
which  said  action  was  brought  was  given.  Whereas,  in  truth 
and  in  fact,  the  said  John  S.  Fake  did  not  discount  the  said 
note  above  recited,  and  upon  which  said  action  was  brought; 
and  whereas,  in  truth  and  in  fact,  the  said  Daniel  Burroughs 
did  not  pay  to  the  said  John  S.  Fake,  at  the  time  of  the  dis- 
counting of  the  said  note  above  recited  and  upon  which  said 
action  was  brought,  or  a.t  any  other  time,  the  sum  of  seven  dol- 
lars or  any  other  sum  c  •  -  and  above  the  lawful  interest  and 
discount  upon  said  note  ist  named;  and  whereas,  in  truth  and 
in  fact,  the  said  John  S.  Fake  did  not  discount  the  note  for  the 
renewal  of  which  the  said  note  above  recited  and  upon  which 
said  action  was  brought  was  given;  and  whereas,  in  truth  and 
in  fact,  the  said  Daniel  Burroughs  did  not  pay  to  the  said  John 
S.  Fake,  at  the  time  of  the  discounting  of  said  note  for  the 
renewal  of  which  the  said  note  above  recited,  and  upon  which 
raid  action  was  brought  was  given  or  at  any  other  time,  the 
sum  of  ten  dollars  or  any  other  sum  over  and  above  the  lawful 
interest  and  discount  upon  the  said  note  for  the  renewal  of 
which  the  said  note  above  recited  and  upon  which  said  action 
was  brought  was  given. 

And  so  the  jurors  first  aforesaid,  upon  their  oath  aforesaid, 
do  say:  That  the  said  Daniel  Burroughs  at  and  upon  the  said 
trial  of  the  said  action  and  of  the  said  issues,  on  tke  said 
twenty-fourth  day  ol  January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty,  at  the  said  city  of  Troy,  in  the 
county  of  Rensselaer  aforesaid,  before  the  said  William  B. 
Wright,  one  of  the  justices  of  the  supreme  court  of  the  state  of 
New  York,  then  and  there  holding  a  term  of  the  said  supreme 
court  [he  the  said  William  B.  Wright,  so  as  aforesaid,  having 
full  and  sufficient  po-^er  and  authority  to  hold  such  court  and 


216  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Burroughs. 

to  administer  the  said  oath  to  the  said  Daniel  Burroughs  in  that 
hehalf]  by  his  own  proper  act  and  consent,  and  of  his  own 
most  wicked  and  corrupt  mind  in  manner  and  form  aforesaid, 
falsely,  wickedly,  willfully,  corruptly,  maliciously  and  feloni- 
ously did  commit  willful  and  corrupt  perjury,  to  the  great 
displeasure  of  Almighty  God,  in  contempt  of  the  people  of  the 
state  of  New  York  and  their  laws,  to  the  manifest  perversion 
of  justice,  to  the  evil  and  pernicious  example  of  all  others  in 
the  like  case  offending,  against  the  form  of  the  statute  in  such 
case  made  and  provided  and  against  the  peace  of  the  people  of 
the  state  of  New  York  and  their  dignity. 

There  was  a  second  count  in  the  indictment. 

The  defendant  pleaded  not  guilty,  and  the  traverse  came  on 
to  be  tried  on  the  30th  day  of  January,  1851,  at  a  court  of  Oyer 
and  Terminer,  in  the  county  of  Rensselaer,  before  Mr.  Justice 
Harris  and  the  justices  of  the  sessions. 

The  district  attorney  first  offered  in  evidence  a  record  of  a 
iudgment  rendered  in  the  supreme  court  in  favor  of  the  presi- 
dent, directors  and  company  of  the  Bank  of  Lansingburgh, 
against  Daniel  Burroughs,  Samuel  M'Farland  and  John  Bur- 
roughs. The  plaintiffs  alleged  in  the  complaint  that  two  of 
the  defendants,  Daniel  Burroughs  and  Samuel  M'Farland,  on 
the  22d  day  of  January,  1849,  at  Cambridge,  in  the  county  of 
Washington,  and  state  of  New  York,  by  their  promissory  note 
in  writing,  dated  on  the  day  last  mentioned,  for  value  received* 
promised  to  pay  to  the  defendant,  John  Burroughs  or  order,  the 
sum  of  two  thousand  dollars,  at  the  Bank  of  Lansingburgh, 
twenty-five  days  from  the  date  thereof,  and  that  the  defendant, 
John  Burroughs,  afterwards  endorsed  the  said  note,  and  that 
the  same  was  thereupon  transferred  to  the  plaintiffs.  It  was 
further  alleged  in  the  complaint  that  payment  of  the  note  was 
duly  demanded  at  maturity,  and  th?t  it  was  protested  for  non- 
payment, and  notice  thereof  duly  given  to  the  endorser,  and 
that  the  note  had  not  been  paid,  &c.  &c. 

Daniel  Burroughs  and  Samuel  McFarland  answered  togtlher 
setting  up  the  defence  of  usury.  John  Burroughs  answered 
separately  setting  up  a  like  defence.  To  both  these  answers 


ALBANY,  FEBRUARY,  1851.  217 

The  People  v.  Burroughs. 

replies  were  put  in.  It  appeared  by  the  record  that  on  a  trial 
at  the  circuit  the  plaintiff  recovered  the  amount  of  the  note. 

To  the  introduction  of  this  record  in  evidence,  the  defendant 
by  his  counsel  objected  on  the  ground,  that  the  said  record  did 
not  present  an  issue  to  which  the  allegation  in  the  indictment 
if  sustained,  could  be  material,  and  also  that  the  said  record  did 
not  show  a  trial,  and  if  it  did,  it  fixed  it  at  another  time  than 
that  laid  in  the  said  indictment.  The  court  overruled  the 
objection  and  admitted  the  evidence  to  which  the  defendant  by 
his  counsel  excepted.  The  district  attorney  then  called  as  a 
witness  Harvy  Betts  who  testified  as  follows,  to  wit: 

I  was  deputy  clerk  in  January,  1850;  I  was  present  at  the 
January  term  of  this  court,  1850;  Judge  Wright  held  the  term; 
I  know  defendant  by  sight;  he  was  sworn  as  a  witness  on  that 
occasion  in  a  suit  between  the  president,  directors  and  com- 
pany of  the  Bank  of  Lansingburgh  and  Daniel  Burroughs  and 
others  defendants. 

The  district  attorney  then  called  as  a  witness,  Marcus  L. 
Filley  who  testified  as  follows,  to  wit: 

I  was  present  at  the  trial  of  the  cause  referred  to  in  the 
record,  and  took  minutes  of  the  evidence  therein.  The  defend- 
ant testified  on  that  trial  that  he  negotiated  that  note  with 
John  S.  Fake;  he  said  I  brought  the  note  to  Fake  at  that  time; 
I  told  him  I  wanted  to  exchange  that  note,  to  let  him,  Fake, 
have  that  note  and  take  out  the  other,  and  that,  at  that  time  I 
paid  John  S.  Fake  seven  dollars  over  and  above  the  legal 
interest.  He,  defendant,  testified  farther  than  he  procured  the 
discounting  of  the  note  for  which  this  note  was  given  in 
the  renewal  with  John  S.  Fake,  and  that  he,  defendant,  paid 
John  S.  Fake  at  that  time  ten  dollars  over  and  above  the  legal 
interest. 

The  district  attorney  then  called  as  a  witness  Abram  B. 
Olin  who  testified  as  follows,  to  wit: 

I  was  counsel  for  the  plaintiffs  in  a  suit  spoken  of  by  Filley, 
and  kept  minutes  of  the  evidence.  He,  defendant,  testified  on 
that  trial  when  called  as  a  witness,  in  substance,  that  John  S. 

VOL.  I.  28 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Burroughs. 


Fake  discounted  this  note  and  that  he  paid  him  seven  dollars, 
over  and  above  the  legal  interest;  he  also  testified  that  the  note 
for  which  this  note  was  given  in  renewal,  was  discounted  on 
his  application  by  John  S.  Fake,  and  that  he,  defendant,  agreed 
to  pay,  and  did  pay  to  Jo.hn  S.  Fake  ten  dollars  over  and  above 
the  legal  interest  for  discounting  that  note. 

John  S.  Fake  was  then  called  as  a  witness  for  the  people, 
and  testified  in  substance  as  follows,  to  wit:  I  did  not  discount 
the  note  referred  to,  and  the  defendant  did  not  pay  me  any  sum 
over  and  above  the  legal  interest,  I  do  not  know  whether  this 
note  was  given  in  renewal  of  another  note  or  not.  I  do  not 
recollect  whether  I  discounted  the  note  for  which  this  was 
given  in  renewal.  I  never  took  any  money  of  Burroughs  over 
and  above  the  interest,  on  any  paper  whatever. 

Alpheus  Warren  on  the  part  of  the  people,  testified  in  sub- 
stance as  follows:  I  know  defendant,  I  took  this  note  to  the 
bank  for  defendant,  in  January,  1819,  defendant  let  rne  have 
the  money  to  pay  the  discount  thereon,  I  paid  it  to  the  Bank  of 
Lansingburgh  and  returned  the  balance  of  the  money  and  the 
old  note  to  the  defendant.  Defendant  did  not  pay  me  any  sum 
over  and  above  the  legal  interest  thereon. 

Pliny  Corbin  was  called  on  the  part  of  the  people,  and  testi- 
fied in  substance  as  follows:  The  note  referred  to  was  dis- 
counted by  the  Bank  of  Lansingburgh,  on  the  25th  day  of 
January,  1849,  it  was  brought  to  the  bank  by  Mr.  Warren. 
Mr.  Alexander  Walsh  made  out  the  discount  on  said  note,  and 
Warren  handed  me  some  money  and  Walsh  took  out  the  dis- 
count on  said  note,  and  returned  back  the  balance  of  the  money, 
and  I  handed  it  to  Warren.  Defendant  had  some  17  or  20 
notes  discounted  apd  renewed  at  the  Bank  of  Lansingburgh 
from  October  1848,  ->  February  1849  for  $2000  each. 

Alexander  Walsh  on  the  part  of  the  people,  testified  in  sub- 
stance as  follows:  I  computed  the  discount  on  this  note.  I  am 
teller  of  the  Bank  of  Lansingburgh.  I  took  out  the  discount 
and  expense  6"f  protest,  and  retained  no  more,  and  handed  the 
balance  of  the  money  and  old  note  back  to  Warren. 

There  was  testimony,  also,  introduced   on  the  part   of  the 


ALBANY,  FEBRUARY,  1851. 


The  People  v.  Burroughs. 


defendant  corroborating  the  testimony  of  the  said  defendant. 
I  was  in  the  former  suit.  It  was  admitted  on  the  trial  of  the 
indictment  that  John  S.  Fake  was,  at  the  time  of  the  alleged 
discounting  of  the  note,  president  of  the  Bank  of  Lansing- 
burgh;  and  that  it  was  so  proved  on  the  trial  upon  the  note. 

After  closing  the  testimony,  the  defendant's  counsel  raised 
the  following*points  of  law  touching  the  said  indictment,  and 
the  matters  therein  charged  against  the  said  Daniel  Burroughs, 
and  asked  the  court  to  direct  a  verdict  of  acquittal,  and  also 
asked  the  court  to  charge  the  jury: 

1st.  That  said  indictment  charged  no  offence,  and  alleged  no 
issue  that  could  have  been  material  on  the  trial  of  the  former 
suit. 

2d.  Any  charge  as  laid  in  the  indictment  that  Fake  took 
usury  did  not  even  conduce  to  prove  the  issue,  that  the  bank 
took  usury  on  that  note  which  was  the  only  issue  in  that  suit. 

3d.  The  indictment  varied  fatally  from  the  record  as  to  what 
was  the  material  issue  in  that  suit.  The  record  showed  the 
issue  to  have  been  that  the  bank  discounted  the  note  usu- 
riously.  The  indictment  showed  the  issue  to  have  been  that 
Fake  discounted  and  took  the  usury. 

4th.  That  there  was  a  fatal  variance  between  the  indictment 
and  the  proof  on  two  points. 

1st.  As  to  Burroughs  being  called  and  sworn  as  a  witness  on 
the  issues  between  the  plaintiffs  and  John  Burroughs  only 
(such  being  the  allegation  in  the  indictment),  when  the  proof 
showed  he  was  called  and  testified  for  both  John  Burroughs 
and  McFarland. 

2d.  The  proof  showed  that  the  real  discounting  was  by  the 
bank  (not  by  Fake  individually),  and  so  sworn  by  Burroughs. 
But  the  indictment  charged  that  he  swore  that  Fake  individu- 
ally discounted  the  note. 

These  objections  were  severally  overruled  by  the  court,  to 
each  of  which  decisions  the  counsel  for  the  defendant  excepted. 

The  defendant  was  found  guilty  and  sentence  suspended  for 
the  purpose  of  taking  the  opinion  of  the  supreme  court. 


220  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Burroughs. 

R.  W.  Peckham,  for  the  prisoner,  made  the  following  points: 
I.  That  said   indictment  charges  no  offence  and  alleges  no 
issue  that  could  have  been  material  on  the  trial  of  the  former 
suit. 

IL  Any  charge,  as  laid  in  the  indictment  that  Fake  took 
usury,  did  not  even  conduce  to  show  that  the  bank  took  usury, 
on  that  note,  which  was  the  only  issue  in  that 'suit.  1.  The 
testimony  of  the  prisoner  was  not  shown  to  be  material  to  the 
issue  in  the  civil  suit.  The  people  were  bound  to  show  its 
materiality.  (Roscoe's  Cr.  Ev.  3  ed.  820;  3  Starkie,  3  ed.  859; 
2  Russell  on  Crimes,  5  Jim.  ed.  662;  W/ieaton  Criminal  Law, 
423,  483.)  2.  There  is  no  proof  in  the  case  that  Fake  had 
authority  to  act  for  the  bank.  That  the  by-laws  authorize  him 
to  act,  or  that  he  was  accustomed  so  to  act,  when  he  discounted 
a  note.  His  being  president  did  not  make  him  the  bank,  cer- 
tainly not  —  without  further  proof.  3.  If  intended  to  insist 
that  Fake  acted  as  president,  it  should  so  have  been  interpreted 
by  innuendo  in  the  indictment,  and  should  have  been  sustained 
by  proof  of  his  authority  or  practice  ratified  by  the  bank. 
Here  the  people  show  that  the  prisoner  swore,  on  an  issue 
whether  the  bank  took  usury,  that  Fake  took  usury  —  can  they 
convict  the  prisoner  of  perjury,  by  showing  that  the  bank  took 
no  usury?  It  is  gravely  said  that  Fake  was  proved  to  be 
president  of  the  bank.  What  then?  He  may  also  have  been 
preacher  of  St.  Paul's  church.  Does  that  vary  his  act?  It  is 
a  mere  description  of  the  person.  It  in  no  manner,  so  far  as 
shown,  makes  his  act  the  act  of  the  bank  or  of  the  church;  (6 
Hill,  240)  further  proof  might  make  it  so,  but  that  must  be 
given  by  the  people. 

III.  The  indictment  varies   fatally  from  the   record   as  to 
what  was  the  material  issue  in  that  suit.     The  record  shows 
the  issue  to  have  been  that  the  bank  discounted  the  note  usuri- 
ously.     The  indictment  shows  the  issue  to  have  been  that  Fake 
discounted  and  took  the  usury. 

IV.  There  is  a  fatal  variance  between  the  indictment  and 
the  proof,  on  two  points:   1.  As  to  Burroughs  being  called  and 


ALBANY,  FEBRUARY.  1851.  221 

The  People  v.  Burroughs. 

sworn  as  a  witness  on  the  issues  between  the  plaintiffs  and  John 
Burroughs  only  (such  being  the  allegation  in  the  indictment). 
The  proof  shows  that  he  was  called  and  testified  both  for  John 
Burroughs  and  McFarland.  2.  The  proof  shows  the  real  dis- 
counting to  have  been  by  the  bank,  not  by  Fake  individually, 
and  so  sworn  by  Burroughs.  But  the  indictment  charges  that 
he  swore  that  Fake  individually  discounted  and  took  the  usury. 
(2  Salk.  224;  2  Russell  on  Crim.  660;  Roscoe's  Ev.  771;  2 
Starkie,  624;  Peake's  Ev.  155.) 

V.  The  exception  to  the  introduction  of  the  record  was  well 
taken.  (Roscoe's  Cr.  Ev.  768;  7  Carr,  fy  Payne ,  559;  Roscoe's 
Cr.  Ev.  757.) 

/.  K.  Porter,  for  the  people. 

I.  The  indictment  alleges  that  certain  questions  became  and 
were  material  upon   the  trial;  and  the  assignment  of  perjury 
relates  to  the  testimony  of  the  defendant   in  relation  to  those 
matters.     1.  Where  the  materiality  of  the  testimony  appears 
from  the  statement  of  the  issue  and  the  evidence,  no  averment 
of  materiality  is  necessary.     (8  Wendell,  636.)     2.  Where  it 
does  not  so  appear,  it  is  sufficient  to  aver  in  the  indictment  that 
the  matters  in  relation  to  which  perjury  is  assigned,  became  and 
were  material  upon  the  trial.     (Wharton's  Criminal  Law,  482; 
1  Nott  fy  McCord,  546, 553;  1  Devereux  Rep.  519;  12  Mass.  R. 
274;  5  Durnf.  $  East,  311,  318-9:  2  Russell  on  Crimes,  541; 
4  Wentworth  PL  239,  240;  5  Wendell,  20.) 

II.  The  indictment  charges  the  offence  of  perjury,  and  avers 
every  fact  essential  to  sustain  the  charge.     1.  It  alleges  that 
the  oath  was  duly  administered;  that  the  testimony  was  given 
in  an  action  at  law,  and  before  a  competent  tribunal;  that  the 
evidence  was  material  and  false;  and  that  it  was  given  wick- 
edly, corruptly  and  feloniously.    2.  Such  an  indictment  is  good 
at  common  law.    (Jlrchbold's  Cr.  PI.  568.)    3.  The  indictment 
avers  every  fact,  which,  under  the  statute,  constitutes  an  in- 
gredient of  the  offence,  and  such  an  indictment  is  always  held 


222  DECISIONS  IN  CRIMINAL  CASta. 

The  People  v.  Burroughs 

sufficient,  except  in  cases  of  treason.  (1  Baldwin's  R.  79,  119; 
2  Gallison  R.  15,  18.)  4.  "  The  indictment  in  this  case  con- 
tains the  substance  of  the  offence,  with  the  circumstances  ne- 
cessary to  render  it  intelligible,  and  to  inform  the  defendant  of 
the  allegations  against  him."  This  is  all  that  is  requisite.  (5 
Wendell,  9,  20.)  f 

III.  The  testimony  of  the  defendant  was  upon  questions  which 
are  shown  to   have  been  in  fact  material  upon  the  trial.     1 
The  allegation  of  John  Burroughs  was,  that  the  note  was  dis- 
counted by  the  corporation  at   a  usurious  rate.     2.  To  prove 
this  allegation,  the  defendant  was  called,  who  testified  that  it 
was  discounted  by  John  S.  Fake,  at   a  usurious  rate.     It  was 
proved  that  Fake  was  the  president  of  the  bank.      It  was  ad- 
mitted by  the  pleadings  that  the  loan  was  made  to  the  defend- 
ants by  the  bank;  thus  establishing  the  fact  that  the  act  of  Fake 
was  the  act  of  the  bank  through  him,  as  its  presiding  officer. 
3.  It  is  not  necessary  that  the  evidence  should  be  material  to 
the  issue.     It  is  enough  if  it  tended  to  establish  a  fact,  which 
might,  when  connected  with  other  facts,   establish  a  defence- 
(2  L'd  Raymond,  889;  12  Modern  R.  142;  2  Russell  on  Crimes 
541;  Roscoe's  Crim.  Ev.  682.) 

IV.  The  objections  to  the  introduction  of  the  record  were  not 
well  taken.     1.  The  issue  which  it  proved,  was  one  in  relation 
to  which  the  testimony  of  the  defendant  not  only  "  could  be 
material,"  but  was  material;  *br  if  true  the  note  was  void  in  its 
inception.     2.  But  if  otherwise,  it  was  no  objection  to  the  re- 
cord that  it  did  not  prove  all  the  averments  of  the  indictment. 
Other  evidence  was  introduced  subsequently  to  establish  the 
materiality  of  the  testimony.     3.  The  objection  that  the  record 
did  not  show  a  trial,  was  unfounded  in  fact.     4.  The  record 
did  not  fix  the  time  of  the  trial.    That  was  proved  by  the  clerk. 

V.  The  objection,  that  the  defendant  was  sworn  on  the  par- 
as well  of  M'Farland  as  of  John  Burroughs,  is  entirely  un- 
founded.   1.  The  defendant  and  JVTFarland  were  joint  makers. 
The  endorsers  pleadryi  separately.     The  indictment  states  that 
defendant  testified  on  the  trial   on  behalf  of  John  Burroughs. 
It  is  proved  that  he  did.     If  the  testimony  enured  also  to  the 


AI.BAXI,  FEBRUARY,   1851. 


The  People  v.  Burroughs. 


benefit  of  M'Farland,  that  fact  was  not  proved.  2.  Unless  the 
fact  and  the  averment  are  necessarily  in  direct  antagonism,  the 
defendant  is  not  entitled  to  the  presumption  that  the  averment 
is  inconsistent  with  the  evidence.  (Whartun's  Cr.  Law,  482; 
Ryan  Sf  Moody,  N.  P.  302.)  3.  If  there  was  a  variance,  and 
evon  a  misdescription  of  one  of  the  parties,  it  would  not  pre- 
judice the  indictment.  (2  Russell  on  Crimes^  539;  2  Campbell's 
R.  109.) 

VI.  The  objection  of  variance  between  the  indictment  and 
the  proof,  as  to  the  discounting  of  the  note,  rests  upon  erroneous 
assumption  of  fact.     1.  On  the  trial  of  the  civil  cause,  it  was 
admitted  of  record,  and  conceded  by  all  parties  that  the  note 
was  discounted  by  the  corporation.     2.  The  corporation  could 
only  discount  through  some  officer  of  the  bank.     Some  officer 
did  it,  and  it  was  material  to  know  who  the  officer  was,  and 
what  were  the  terms  of  the  discount.    3.  It  was  proved  on  that 
trial  that  Fake  was  president  of  the  bank,  and  the  defendant 
was  called  to  prove  two  facts:  1st.  That  he  was  the  one  who 
discounted  it;  2d.  That  the  discount  was  at  a  usurious  rate. 
On  both  these  counts  he  swore  falsely.     4.  If  the  jury  had  be- 
lieved his  evidence,  it  was  clear  that  the  bank  loaned  him  the 
money  at  a  usuries  rate,  and  the  fact  that  it  made  the  loan 
through  its  officer,  did  not  make  it  any  the  less  the  act  of  the 
bank. 

VII.  There  is  no  variance  or  imperfection  in  the  indictment, 
but  if  those  which  are  alleged  existed,  they  belong  to  that  class 
which  our  courts  have  adjudged  to  be  "  matter  of  form'*  within 
the  meaning  of  the  statute.     (5  Wendell,  10,  19,  20;  2  R.  S. 
728,  §52;  12  Wend.  45,  431;  3  Barbour,  S.  C.  R.  470.) 

Per  Curiam.  We  think  the  offence  sufficiently  charged  in 
the  indictment.  It  was  enough  to  aver  that  the  matters,  in 
relation  to  which  perjury  was  assigned,  became  and  were  ma- 
terial upon  the  trial.  It  was  unnecessary  to  aver  that  Fake 
was  acting  as  an  officer  of  the  bank,  or  to  state  in  what  other 
way  he  was  connected  with  the  transaction.  That  is  left  to  be 
proved  on  the  trial,  under  the  general  averment  of  materiality. 


224  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v,  Tompkins. 

We  think  the  indictment  sufficient,  and  that  it  was  supported 
by  the  requisite  proof. 

The  objection  to  the  introduction  of  the  record  in  evidence 
was  properly  overruled. 

There  was  no  variance  between  the  allegation  in  the  indict- 
ment that  the  prisoner  was  sworn  and  examined  in  behalf  of 
John  Burroughs,  and  the  proof  that  he  was  sworn  and  examined 
in  the  cause.  Being  a  joint  maker  with  Samuel  M'Farland, 
his  tes  timony  could  not  have  been  received  for  him,  and  could 
only  be  made  available  in  favor  of  the  endorser. 

The  proceedings  of  the  Oyer  and  Terminer  must  be  affirmed 
and  the  cause  remitted  to  that  court  that  sentence  may  be 
pronounced. 


SUPREME  COURT.     At  Chambers.      Before  Justice  Edmonds 
City  of  New  York,  February  25, 1851. 

THE  PEOPLE  vs.  RAY  TOMPKINS. 

Where,  on  a  return  to  a  writ  of  habeas  corpus,  it  appears  that  the  prisoner 
was  detained  by  virtue  of  a  warrant  issued  by  a  police  justice,  upon  com- 
plaint on  oath,  the  officer,  before  whom  the  habeas  corpus  is  pending,  has  a 
right  to  go  behind  the  warrant  and  inquire  into  the  legality  of  the  imprison- 
ment. 

To  constitute  the  crime  of  obtaining  property  by  false  pretences  under  the 
statute,  two  things  are  essential,  viz.,  a  false  representation  as  to  an  existing 
fact  and  a  reliance  upon  that  representation  as  true. 

Where,  from  the  depositions  taken  before  the  police  justice,  it  appeared  that 
N,  agreed  to  sell  to  T  one  hundred  shares  of  stock,  deliverable  and  payable 
the  next  day,  and  on  the  next  day,  before  transferring  the  stock,  N  sent  for 
T's  check  and  received  for  answer  that  T  had  sent  his  check  to  be  certified 
and  would  send  it  to  N  in  ten  or  fifteen  minutes,  and  relying  upon  this  state- 
ment N  thereupon  transferred  the  stock  to  T,  htld,  that  it  was  apparent  that 
N's  reliance  was  on  the  promise  and  not  on  the  representation  that  the  check 
had  been  sent  to  be  certified,  and  that  a  case  was  not  shown  within  the 
statute,  especially  as  there  was  no  proof  showing  that  the  check  had  not 
been  sent  to  be  certified,  and  the  prisoner  was  discharged. 

Forms  of  writs  of  habeas  corpus  and  certiorari,  of  the  allowance  thereof  and 
of/the  return  thereto. 


NEW  YORK,  FEBRUARY,  1851.  225 

The  People  v.  Tompkins. 

On  the  25th  day  of  February,  1851,  an  application  was  made 
in  due  form  of  law  by  Ray  Tompkins,  to  Mr.  Justice  Kdmonds, 
for  a  writ  of  habeas  corpus  to  be  directed  to  Isaac  Edw  ards,  a 
police  officer  of  the  city  of  New  York,  then  having  the  said 
Ray  Tompkins,  as  was  alleged,  in  custody;  which  writ  was  as 
follows: 

The  people  of  the  state  of  New  York,  to  Isaac  Edwards, 
greeting:  We  command  you  that  you  have  the  body  of  Ray 
Tompkins,  by  you  imprisoned  and  detained,  as  it  is  said,  toge- 
ther with  the  time  and  cause  of  such  imprisonment  and  detention, 
by  whatsoever  name  he  shall  be  called  or  charged,  before  the 
Hon.  John  W.  Edmonds,  at  the  chambers  of  the  said  judge, 
No.  5  Brevoort  Place,  in  the  city  of  New  York,  on  the  25th  day 
of  February  instant,  at  7  o'clock,  P.  M.,  to  do  and  receive 
what  shall  then  and  there  be  considered  concerning  him,  and 
have  you  then  and  there  this  writ.  Witness,  John  W.  Edmonds, 
esquire,  one  of  the  justices  of  the  supreme  court,  on  the  25th  day 
of  February  one  thousand  eight  hundred  and  fifty-one. 

G.  W.  RIBLETT,  Clerk, 

JONAS  B.  PHILLIPS,  Attorney. 

Allowed  February  25,  1851. 

J.  W.  EDMONDS. 

Under  which  writ,  the  said  Tompkins  was  brought  before 
the  said  justice,  and  the  return  being  suspended  till  the  27th  of 
February,  1851,  he  was  remanded  and  continued  in  the  custody 
of  officer  Edwards  aforesaid.  To  the  said  writ  return  was 
duly  made  by  the  said  Isaac  Edwards  in  the  words  and  figures 
following,  to  wit: 

I,  Isaac  Edwards,  one  of  the  policemen  of  the  city  of  New 
York,  upon  whom  the  annexed  writ  of  habeas  corpus  was 
served,  hereby  return  to  said  writ:  That  I  hold  and  detain  the 
said  Ray  Tompkins  therein  named,  in  my  custody.  That  I  do 
hold  and  detain  him  under  and  by  virtue  of  a  warrant,  a  copy 
whereof  is  hereto  annexed,  and  the  original  whereof  I  now  pro 

VOL.  I.  29 


22Q 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Tompkins. 


duce. J  And  I  further  return  that  the  said  writ  of  habeas  corpus 
was  served  upon  me  in  the  police  office,  Halls  of  Justice,  in  thh 
city,  after  I  had  written  my  -return  upon  the  said  original  wai 
rant,  but  before  I  had  actually  returned  the  same. 
February  27th,  1851. 

ISAAC  EDWARDS. 

State  of  New  York,  city  and  county  of  New  York: 

To  any  constable  or  policeman  of  the  city  of  New  York: 
Whereas,  complaint  on  oath  has  been  made  before  the  mi 
dersigned,  cue  of  the  police  justices  for  preserving  the  peace  in 
the  said  city,  by  Benjamin  Nathan:  That  at  the  city  of  New 
York,  on  the  29th  day  of  January,  1851,  Ray  Tompkins  did 
designedly,  and  by  means  01^  false  pretences^  cheat  and  defraud 
the  said  Nathan  out  of  one  hundred  share?  of  the  stock  of  The 
Farmers'  Loan  and  Trust  Company,  of  the  value  of  three 
thousand  dollars  and  more,  the  property  of  the  said  Nathan. 
These  are,  therefore,  in  the  name  of  the  people  of  the  state  of 
New  York,  to  command  you,  the  said  constables  and  policemen, 
and  every  of  you,  to  apprehend  the  body  of  the  said  defendant, 
and  forthwith  bring  him  before  me,  or  some  other  justice  of  the 
peace,  for  the  city  and  county  of  New  York,  at  the  police  office, 
Halls  of  Justice,  Centre  street,  in  the  said  city,  to  answer  the 
said  charge,  and  to  be  dealt  with  as  the  law  directs.  Given 
under  my  hand  and  seal,  this  21st  day  of  February,  1851. 

J.  LOTHROP,  Police  Justice. 

And  the  prisoner  made  answer  to  the  said  return  in  the  words 
and  figures  following: 

In  the  matter  of  RAY  TOMPKINS — Before  the  Hon.  John  W. 
Edmonds,  on  return  of  habeas  corpus. 

The  answer  of  Ray  Tompkins  to  the  return  made  by  the 
officer  to  the  writ  of  habeas  corpus,  shows  that  this  defendant 
denies  that  the  magistrate  had  any  authority  whatsoever  to  issue 
a  warrant  for  the  arrest  of  him,  the  said  defendant;  that  there 
was  no  complaint  or  testimony  before  said  magistrate,  showing 


NEW  YORK,  FEBRUARY,   1851.  227 

The  People  v.  Tompkins. 

that  this  defendant  had  been  guilty  of  any  criminal  offence,  or 
that  any  criminal  offence  whatsoever  had  been  committed,  to 
authorize  or  justify  the  issuing  of  said  warrant.  And  this 
defendant  further  answering,  avers  that  no  return  had  been 
made  by  the  officer  to  said  warrant  at  the  time  the  writ  of 
habeas  corpus  was  served  upon  said  officer  in  whose  custody 
defendant  was  at  the  time  of  the  service  of  said  writ.  That 
the  officer,  it  is  true,  had  endorsed  a  return  upon  snid  warrant; 
but  the  same  having  never  been  returned,  he  (the  said  officer) 
erased  such  endorsement  by  drawing  ink  lines  across  and 
through  the  writing  thereof,  as  he  is  informed  and  believes. 

RAY  TOMPKINS. 

City  and  county  of  New  York,  ss: 

Ray  Tompkins  being  duly  sworn,  says  that  he  has  read  the 
foregoing  answer  by  him  subscribed,  and  knows  the  contents 
thereof,  and  that  the  same  is  true  of  his  own  knowledge,  except 
as  to  the  matters  therein  stated  to  be  upon  his  information  and 
belief,  and  as  to  these  matters  he  believes  it  to  be  true. 

RAY  TOMPKINS. 

Sworn  to  before  me,  Feb.  27th,  1851. 
J.  W.  EDMONDS. 

Judgment  being  again  suspended  on  the  said  writ  until 
March  3d,  A.  D.  1851,  on  that  day  the  prisoner  was  again 
brought  up,  and  again  remanded  until  the  7th  day  of  March, 
A.  D.  1851,  and  again  on  that  day  remanded  until  March 
14th,  1851,  A.  D.  when  final  hearing  was  had.  On  the  26th 
day  of  February,  a  writ  of  certiorari  on  the  application  of  the 
said  Ray  Tompkins  was  also  allowed  by  his  Honor  Judge 
Mitchell,  as  will  fully  appear  by  the  said  writ  and  endorsement 
thereto  as  follows: 

The  people  of  the  state  of  New  York,  to  Jeremiah  Lothrop, 
justice  police  court,  and  Isaac  Edwards,  policeman,  greeting: 

We  command  you,  that  you  certify  fully  and  at  large  to  the 
justices  of  the  supreme  court,  at  the  City  Hall,  on  the  27th  of 
February,  A.  D.  1851,  the  day  and  cause  of  the  imprisonment 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Tompkins. 


of  Ray  Tompkins,  by  you  detained  as  is  said,  by  whatsoever 
name  the  said  Ray  Tompkins  shall  be  called  or  charged:  and 
have  you  then  this  writ. 

Witness  John  W.  Edmonds,  presiding  justice,  the  26th  day 
of  February,  1851. 

GEO.  W.  RIBLETT,  Clerk. 
L.  s.  JONAS  B  PHILLIPS,  Att'y. 

Endorsed — Certiorari  allowed,  returnable  on  the  27th  inst. 
before  Judge  Edmonds,  February  26,  1851. 

W.  MITCHELL. 

To  this  writ  return  was  made  by  Justice  Lothrop,  in  the 
words  and  figures  following,  to  wit: 

City  and  county  of  New  York,  ss. 

Complaint  having  been  made  to  the  undersigned,  one  of  the 
police  justices  for  the  city  of  New  York,  that  a  criminal  offence 
had  been  committed  in  said  city,  and  that  the  said  criminal 
offence  had  been  committed  by  Ray  Tompkins;  and  the  said 
Ray  Tompkins  having  been  brought  before  me,  accompanied 
by  his  counsel,  the  first  day  of  February,  1851,  and  from  time 
to  time  thereafter,  until  the  24th  February,  1851,1  proceeded 
to  examine  under  oath,  Benjamin  Nathan,  one  of  the  complain- 
ants, and  other  witnesses  produced  in  support  of  said  complaint, 
the  said  Ray  Tompkins  and  his  counsel  being  present  through 
the  whole  of  said  examination,  and  the  said  counsel  for  the  said 
Ray  Tompkins  fully  cross-examining  said  witnesses,  which  said 
examination  and  cross-examination,  are  as  follows: 

City  and  county  of  New  York,  ss. 

Benjamin  Nathan,  No.  77  Merchants'  Exchange,  sworn. — 
I  am  a  broker,  of  No.  77  Merchants'  Exchange.  I  am  ac- 
quainted with  Ray  Tompkins;  he  was  a  stock  and  exchange 
broker;  it  was  in  Wall  street  near  Broad  street;  I  have  had  one 
business  transaction  with  him  previous  to  the  last.  I  sold  him 
on  the  28th  January  last  one  hundred  shares  of  capital  stock 
deliverable  and  payable  the  next  day;  this  agreement  to  sell 
•was  at  the  second  board  of  the  board  of  brokers,  in  the  Mer- 


NEW  YORK  FEBRUARY,  1851.  229 

The  People  v.  Tompkins. 

chants'  Exchange,  in  the  board  of  brokers'  room.  Previous  to 
my  transferring  the  stock  to  Mr.  Tompkins  on  the  29th,  I  sent 
my  brother,  Jonathan  Nathan,  to  Mr.  Tompkins  for  Tompkins' 
check  for  the  payment  of  the  stock,  which  was  three  thousand 
three  hundred  and  sixty-two  dollars  and  fifty  cents.  This  was 
in  the  neighborhood  of  one  o'clock;  the  board  of  brokers  had 
adjourned  about  half-past  twelve  o'clock  of  that  day.  I  had  not 
seen  Mr.  Tompkins  on  that  morning  before  I  sent  for  the  check. 
My  brother  was  gone  five  minutes,,  and  returned  without  the 
check;  my  brother  said,  that  Tompkins  had  told  him  that  he  had 
sent  his  check  to  the  Merchants'  Exchange  Bank  to  be  certified, 
and  that  he  would  send  it  to  me  in  ten  or  fifteen  minutes,  as 
soon  as  the  boy  would  return  with  the  check.  I  then  went  to 
the  office  of  the  Farmers'  Loan  and  Trust  Company,  and  trans- 
ferred the  stock  to  Mr.  Tompkins;  I  made  the  transfer  in  five 
or  ten  minutes  after  my  brother  had  returned;  I  made  the  trans- 
fer in  the  books  of  the  company  to  Ray  Tompkins;  I  at  this 
time  owned  the  stock;  I  transferred  one  hundred  shares  to  him. 
The  reason  that  induced  me  to  transfer  this  stock  was  that  I 
was  told  he  had  sent  his  check  to  be  certified,  and  would  send 
it  to  me;  I  believed  this  representation;  I  went  from  the  com- 
pany's to  my  other  business;  I  left  the  stock  transferred  to 
Tompkins,  who  was  present  at  the  time  I  transferred  the  stock 
to  him;  he  was  standing  next  to  me;  nothing  passed  between 
us  at  that  time.  He  was  not  in  the  office  when  I  went  in,  but 
came  in  before  I  made  the  transfer;  he  came  in  immediately 
after  I  got  in  the  office;  he  was  present  and  heard  me  give 
directions  to  the  clerk  to  transfer  the  stock  to  him.  When  I 
returned  to  my  office,  I  found  no  certified  check  from  Mr. 
Tompkins.  On  making  up  my  money  and  checks  at  about  two 
o'clock,  I  found  that  no  check  had  been  received  from  Tomp- 
kins; I  went  to  his  office;  he  was  not  in;  this  was  a  quarter 
past  two  or  half  past  two  o'clock;  I  saw  a  young  man  by  the 
name  of Harrison,  and  the  clerk  of  Tompkins;  I  de- 
manded of  the  clerk  a  check;  he  said  Mr.  Tompkins  had  taken 
my  check  with  others  to  the  bank  to  be  certified,  and  would  be 
back  in  a  few  minutes;  I  waited  ten  minutes  and  Tompkins  did 


230 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Tompkins. 


not  appear,  and  the  clerk  said  he  would  go  over  to  the  bank 
and  see  if  Mr.  Tompkins  was  there,  and  what  detained  him;  he 
left  and  I  waited  in  the  office;  Mr.  Tenbrook  soon  after  went 
to  the  Merchants'  Exchange  Bank.  On  our  way  we  met  the 
clerk  returning,  who  said  Mr.  Tompkins  was  not  there.  I  went 
to  the  Merchants'  Exchange  Bank  and  he  was  not  there.  I 
returned  to  Tompkins'  office,  it  being  then  about  three  o'clock; 
soon  after  the  clerk  opened  the  drawer  where  lay  several  checks, 
mine  amongst  the  rest,  one  payable  to  my  order  signed  Ray 
Tompkins,  on  the  Merchants'  Exchange  Bank,  for  $3,362*50 
not  certified.  Previous  to  my  taking  the  check  the  clerk  told 
me  not  to  take  the  check,  and  he  would  give  it  to  me.  I  took 
the  check,  but  from  his  hand  or  not  I  can't  say.  I  ran  with  the 
check  to  the  bank  and  payment  was  refused  for  want  of  funds. 
I  then  went  back  to  Tompkins'  office;  the  clerk  was  there, 
also  Minthorne  Tompkins,  but  not  Mr.  Tompkins;  I  next  saw 
Mr.  Tompkins  at  the  police  court.  I  don't  know  the  clerk's 
name  except  that  they  call  him  Archy;  he  was  a  young  man;  I 
do  not  know  if  he  was  or  not  a  book  keeper.  I  saw  no  other 
clerk  than  this  one  at  Tompkins'  office  after  two  o'clock.  The 
check  has  never  been  paid;  I  don't  know  what  was  done  with 
the  stock;  I  have  not  seen  the  books  of  transfer  since  I  trans- 
ferred my  shares  to  Tompkins;  I  heard  Mr.  Tompkins  give 
some  directions  to  Mr  Boyd,  the  transfer  clerk,  just  as  I  was 
leaving  after  making  my  transfer  to  him;  I  did  not  understand 
what  it  was. 

Cross-examined. — I  don't  know  how  long  Mr.  Tompkins  has 
been  in  the  board  of  brokers;  I  have  known  him  six  months; 
his  character  in  the  board  in  regard  to  integrity  was  fair;  1 
don't  know  that  it  was  unusually  high;  he  was  in  the  habit  of 
attending  the  board;  I  have  heard  him  buy  and  sell  in  the  board. 
I  understood  he  lived  in  the  country,  but  I  don't  know.  I  think 
this  stock  was  sold  to  him  on  Tuesday:  I  had  one  hundred 
shares  of  stock  for  sale  at  a  certain  price:  Mr.  Tompkins  made 
.me  an  offer.  I  had  announced  publicly  one  hundred  shares  of 
the  stock  for  sale,  and  Tompkins  said  I  will  give  one  quarter, 
and  I  said  I  will  sell  for  half,  and  he  said  a  quarter  at  most, 


NEW  YORK.  FEBRUARY.  1851. 


The  People  ».  Tompkins. 


and  I  said,  well,  I  will  sell  you  one  hundred  shares  at  that  rate; 
he  never  asked  me  to  transfer  this  stock;  the  usual  time  of 
transfer  is  between  12  and  2  o'clock;  I  received  no  message 
from  Tompkins  until  I  sent  for  a  check;  I  was  in  my  office  when 
I  sent  for  the  check;  I  did  not  know  that  Mr.  Tompkins  was  to 
deliver  the  stock  to  any  other  person,  but  I  presumed  so.  The 
stock  was  not  in  my  name,  but  I  was  the  owner  of  it.  I  had 
bought  it  in  the  morning  of  Wood  &  Co.,  but  had  not  yet  had  it 
transferred;  I  sold  one  hundred  shares  of  other  stock  on  this 
day  on  time.  When  I  sent  for  the  check,  I  said  to  my  brother, 
go  and  get  Mr.  Tompkins'  check;  this  was  about  one  o'clock; 
he  was  gone  five  or  ten  minutes;  my  brother  reported  that  Mr. 
Tompkins  would  send  me  his  certified  check  in  a  few  minutes. 
Tompkins'  office  was  further  from  mine  than  the  Stock  Com- 
pany's office;  I  did  not  exchange  a  word  with  Tompkins  on 
that  day;  he  was  close  to  me  in  the  stock  office.  I  transferred 
one  hundred  shares  of  other  stock;  I  understood  that  Tompkins 
was  at  the  stock  office  to  transfer  this  stock  to  some  one  else; 
it  occupies  most  of  the  time  between  the  meetings  of  the  board 
to  transfer  the  stock;  I  paid  for  my  stock  before  I  went  to  the 
board  of  brokers;  I  can't  tell,  but  I  think  I  was  back  to  my 
office  at  2  o'clock,  where  I  remained  a  quarter  of  an  hour  be- 
fore I  went  to  Tompkins'  office;  I  found  that  Tompkins'  check 
was  not  sent  to  me  at  about  a  quarter  past  two  o'clock;  that  is 
the  usual  hour  of  making  up  their  accounts  and  deposit;  it  is 
between  two  and  three  o'clock.  I  had  been  in  my  office  ten  or 
fifteen  minutes  before  I  discovered  his  check  was  not  in.  I  made 
no  inquiry  about  Tompkins'  check  until  my  brother  told  me  it 
was  not  there;  the  clerk,  "Archy,"  told  me,  as  I  understood,  that 
Tompkins  said  he  was  going  to  get  my  check  certified  when  he 
went  out;  my  impression  is  that  "  Archy,1'  the  clerk,  said  that 
Tompkins  said,  when  he  went  from  the  office,  that  he  was  going 
to  get  his  check  certified  for  me;  I  understood  it  so.  I  can't 
say  positively  whether  I  took  the  check  out  of  "  Archy  V 
hands  or  from  the  counter;  I  was  excited  at  the  time;  I  had 
been  excited  for  som^  time  from  about  three  o'clock  or  about 
that  time;  I  had  been  very  uneasy,  from  fifteen  minutes  before 


232  DECISIONS  IN  CRIMINAL  CASES. 

The  People  ».  Tompkins. 

three,  but  I  became  excited  at  the  time  I  found  that  the  checks 
were  in  the  drawer;  "  Archy"  opened  the  drawer;  the  right  I  had 
to  that  check  was,  that  he  had  my  property  without  giving  me 
any  consideration,  that  is  the  right  I  claimed  to  the  check.  I 
have  the  check,  here  it  is;  I  got  this  check  after  three  o'clock 
it  is  not  the  common  practice  to  pay  checks  after  the  bank  is 
closed.  I  went  from  the  bank  to  Tompkins'  office,  and  from 
there  to  Mr.  Cutting's  office.  I  went  to  Mr.  Tompkins'  office 
after  I  left  Mr.  Cutting's  office;  I  close  my  office  after  the  usual 
office  hour.  After  this,  went  to  Drew  &  Robinson's  office,  and 
to  the  office  of  Gilbert  &  Johnson,  and  from  there  to  the  office 
of  the  chief  of  police,  which  was  six  or  half  past  six  o'clock. 
I  there  made  a  complaint  before  the  chief,  but  it  was  not  reduced 
to  writing  I  did  not  swear  that  he  had  absconded  or  was 
concealed;  I  did  not  swear  that  in  substance;  I  did  not  get  a 
warrant,  but  I  asked  to  have  him  arrested,  and  I  believe  he  was 
arrested.  I  have  never  presented  that  check  to  that  bank 
since. 

Direct  resumed. — A  transaction  previous  to  this  was  for 
stock  sold  to  Tompkins  about  fifteen  or  twenty  days  previous; 
he  paid  me  for  that  stock  by  my  sending  for  his  check;  did  not 
obtain  it,  but  he  afterwards  sent  me  a  certified  check  upon  the 
Merchants'  Exchange  Bank.  I  transferred  the  stock  before  I 
received  the  check. 

BENJ.  NATHAN. 
Sworn  before  me  this  February  1st,  1851. 

J.  LOTHROP,  Police  Justice. 

Accompanying  this  affidavit,  were  the  affidavits  of  Jonathan 
Nathan,  Herman  Johnson,  William  O'Kell,  Le  Grand  Lock- 
wood,  Wm.  W.  Gilbert,  John  P.  Duffy,  William  M.  Clark,  John 
Thompson,  Edward  H.  Arthur,  Robert  C.  Boyd  and  others. 

The  hearing  upon  the  above  writs  of  habeas  corpus  and  cer- 
tiorari  was  postponed  from  time  to  time,  and  lecided  on  the 
llth  of  April,  1851,  after  argument  of  counsel. 

JV.  Bowditch  Blunt  (district  attorney),  and 
W.  C.  JVbyes,  for  the  people. 


NEW  YORK,  FEBRUARY,    1851.  333 

The  People  v.  Tompkins. 

Ogden  Hoffman,  and 

John  Van  Buren,  for  Ray  Tompkins. 

EDMONDS,  J.  —  It  was  very  strenuously  urged  on  the  argu- 
ment of  this  case,  on  the  part  of  the  public  prosecutor,  that  on 
habeas  corpus  the  court  or  officer  had  no  right  to  go  behind  the 
warrant  on  which  the  prisoner  was  detained,  and  inquire  from 
facts  out  of  the  return  into  the  legality  of  the  imprisonment. 

The  effect  of  this  principle  would  be,  that  the  warrant  of  a 
committing  magistrate,  when  legal  upon  its  face,  would  be 
conclusive  upon  the  prisoner,  and  he  could  have  no  relief  from 
imprisonment,  even  if  no  charge  whatever  had  in  fact  been 
preferred  against  him. 

The  proposition  was  of  so  grave  a  character,  and  was 
fraught  with  consequences  so  palpably  mischievous,  and  was 
withal  asserted  with  so  much  zeal,  and  apparently  with  the 
support  of  authorities,  that  I  have  examined  the  subject  very 
carefully,  and  rejoice  to  find  that  there  is  no  authority  to  shake 
my  previous  convictions  on  this  subject. 

The  most  prominent  authority  cited  in  support  of  the  propo- 
sition is  note  30  to  the  appendix,  in  3  Hill,  659  —  where  it  is 
broadly  laid  down,  that  under  our  act  of  1818,  and  under  sec. 
50  of  our  present  habeas  corpus  law  (2  R.  S.  471)  —  if  the 
object  be  to  impeach  the  warrant  as  irregular,  or  as  founded  on 
an  irregular  or  erroneous  judgment,  decree  or  conviction,  you 
can  no  more  inquire  of  such  things  collaterally  by  habeas  cor- 
pus than  by  action  or  indictment,  and  that  our  statute  was  not 
intended  as  an  authority  to  inquire  into  the  validity  of  writs, 
warrants  or  other  process,  further  than  to  ascertain  whether 
they  will  protect  the  party  suing  them  out,  or  the  officer  serv- 
ing or  executing  them. 

So  far  as  this  relates  to  "  judgments,  decrees  and  convic- 
tions," it  is  unquestionably  correct,  for  they  can  not  be  inquired 
into  collaterally j  but  so  far  as  it  relates  to  writs,  warrants  or 
other  process,  before  final  judgment,  it  is  far  from  being  correct, 
and  it  is  unsupported  by  any  authority,  except  a  dissenting 

VOL.  L  30 


234 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  ».  Tompkins. 


opinion  of  one  of  the  judges  in-  the  matter  of  Prime,  &c.  ( 1 
Barb.  Sup.  Co.  Rep.  349.) 

Three  cases  are  cited  in  the  note  in  question  in  support  of 
the  proposition  in  its  broadest  form.  The  first  is  the  case  of 
the  sheriff  of  Middlesex.  (11  M.  fy  Ellis,  273.)  In  that  case 
the  court  held,  that  it  did  not  come  under  the  56  Geo.  Ill,  which 
is  our  statute,  under  which  the  proceeding  is  now  before  me, 
and  the  main  question  decided  was,  whether  a  process  of  con- 
tempt was  good  which  omitted  to  state  the  particulars  of  the 
contempt. 

The  position  which  it  is  cited  to  support  was  not  raised  in 
the  case  at  all,  nor  indeed  could  it  be,  for  the  process  was  final 
in  execution  of  a  final  judgment  of  contempt.  The  next  case  is, 
The  People  v.  Nivens.  (1  Hill,  154.)  That,  also,  was  final 
process  of  contempt,  and  the  question  now  before  me  was  not 
raised,  nor  even  alluded  to  in  the  whole  case. 

The  matter  of  Clark  (9  Wend.  212),  is  the  remaining  one 
cited  in  the  note.  That  was  an  extradition  case  of  a  fugitive 
from  justice,  under  the  constitution  of  the  United  States,  and 
the  court  held,  that  the  question  before  it.  was,  under  the  con- 
stitution, not  one  of  guilt  or  innocence  of  the  accused,  but 
whether  he  was  properly  charged,  so  as  to  warrant  the  gover- 
nor in  surrendering  him. 

It  will  be  very  readily  perceived,  that  none  of  these  cases 
support  the  principle  contended  for. 

The  district  attorney,  however,  cited  other  cases  in  support 
of  his  proposition.  Among  them,  Bermac  v.  The  People.  (4 
Barb.  31.)  That  again  was  a  case  of  final  process,  in  execu- 
tion of  a  summary  conviction,  and  the  counsel  for  the  prisoner 
did  not  traverse  the  return,  so  that  at  first  blush  it  is  manifest 
that  it  does  not  touch  the  question  before  me. 

Another  case  is,  The  People  v.  Cossets  (5  Hill,  168),  which 
was  also  a  commitment  for  contempt,  and  the  court  held  that 
the  prisoner  had  an  undoubted  right  to  show  that  the  commit- 
ting magistrate  acted  without  authority,  and  that  this  was  so, 
notwithstanding  the  commitment  recited  the  existence  of  the 
necessary  facts  to  give  jurisdiction.  And  they  add,  what  is 


NEW  YORK,  FEBRUARY,   IS3!.  235 

The  People  v.  Tompkins. 

alike  good  sense  and  good  law,  na  court  or  officer  can  acquire 
jurisdiction  by  the  mere  assertion  of  it,  or  by  falsely  alleging 
the  existence  of  facts  on  which  jurisdiction  depends. 

The  case  of  McLeod  ( 1  Hill,  377),  is  the  only  remaining  one 
cited  for  the  prosecution.  There  the  question  was,  whether  the 
court  on  habeas  corpus  would  go  behind  an  indictment  to  exam- 
ine the  question  of  guilt  or  innocence;  and  the  court  in  refusing 
to  do  so,  expressly  admit  the  propriety,  in  case  of  a  commit- 
ment on  a  coroner's  inquest,  to  look  into  the  depositions  and 
say,  that  it  was  not  necessary  to  inquire  how  far  they  might 
go  were  the  prisoner  in  custody  on  the  mere  examination  or 
warrant  of  a  committing  magistrate. 

These  are  all  the  cases  which  I  can  find,  or  to  which  I  have 
been  referred  in  support  of  the  doctrine  contended  for  in  behalf 
of  the  prosecution.  They  do  none  of  them  sustain  the  doctrine, 
and  it  is  well  they  do  not,  for  the  habeas  corpus  would  be 
a  mockery,  whenever  a  magistrate  might  please  to  make  the 
instrument  of  oppression  and  false  imprisonment  formal  and 
regular  on  its  face,  and  personal  liberty  would  be  at  the  mercy 
of  ignorance  or  design,  beyond  anything  yet  known  to  our 
laws,  careless  as  they  too  frequently  are  of  freedom  in  the 
detail,  from  the  abundance  of  it  in  the  gross. 

I  have  always  understood  that  it  was  the  intention  to  give  to 
a  party  committed  for  a  crime  by  an  examining  magistrate,  an 
appeal  from  his  commitment  to  the  higher  judges,  by  virtue  of 
the  writ  of  habeas  corpus,  and  such  has  uniformly  been  my 
practice. 

The  practice  is  abundantly  sanctioned  by  authority  and  stat- 
ute. 

Thus,  in  the  very  notes  in  3  Hill,  which  are  so  much  rtlied 
upon,  it  is  laid  down  that  on  a  commitment  by  final-,  process 
upon  a  summary  conviction,  the  record  of  conviction  may  be 
examined,  and  if  it  be  void,  the  prisoner  will  be  discharged. 
( Note  38,  p.  665.)  So,  where  the  arrest  was  without  the  ter- 
ritorial jurisdiction  of  the  court;  so,  wrhere  the  prisoner  was 
carried  before  a*  remote  justice,  when  there  was  one  nearer 
before  whom  he  ought  to  have  been  carried.  (Ib,  note  39.)  So, 


236  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Tompkins. 

where  in  a  criminal  case  the  warrant  is  void,  the  original 
depositions  will  be  looked  into  to  see  whether  an  offence  has 
been  committed,  so  that  the  prisoner  may  be  remanded,  or  held 
to  bail.  (Ib.  note  40).  In  case  the  commitment  be  for  felony, 
the  prisoner  may,  if  brought  up  before  the  indictment,  insist 
that  the  depositions  be  looked  into  as  a  part  of  the  document- 
ary authority  on  which  the  commitment  was  founded.  For  this 
purpose,  copies  may  be  brought  up  by  certiorari.  (Ib.  note  43.) 
And  in  Note  45  it  is  said,  the  accused  who  appeals  by  habeas 
corpus,  must,  at  his  peril,  show  that  he  has  been  committed  on 
insufficient  evidence,  and  where  the  charge  appears  to  be  wholly 
groundless  and  without  suspicion,  the  prisoner  may  be  dis- 
charged. 

For  this  the  writer  cites  1  Chitty  Cr.  Law  128,  where  it  is 
said,  that  if  the  court  ascertain  that  there  is  no  pretence  for 
imputing  to  the  prisoner  any  indictable  offence,  they  will 
discharge  him;  and  Bultman  and  Swartwout's  case  (4  Cranch, 
125),  where  the  United  States  Supreme  Court,  chief  justice 
Marshall  delivering  the  opinion,  quotes  this  passage  from 
Chitty  as  that  of  a  very  learned  and  accurate  commentator,  and 
where  the  prisoners  were  discharged  on  habeas  corpus. 

In  ex  parte  Tayloe  (5  Cowen,  51),  the  supreme  court  say, 
that  in  all  cases  on  habeas  corpus  previous  to  indictment,  the 
court  will  look  into  the  depositions  before  the  magistrate,  or 
before  the  coroner's  inquest,  and  though  the  commitment  be 
full,  and  in  due  form,  yet  if  the  testimony  proves  no  crime,  the 
court  will  discharge  or  bail. 

In  the  matter  of  Prime  (1  Barb.,  349),  the  court  looked 
beyond  the  warrants,  and  into  the  affidavits,  to  see  that  the 
judge  had  colorable  jurisdiction. 

In  ex  parte  Watkins  (3  Peters,  202),  Ch.  J.  Marshall 
described  the  writ  of  habeas  corpus  as  in  the  nature  of  a  writ  of 
error,  which  brings  up  the  body  of  the  prisoner  with  the  cause 
of  commitment,  and  he  adds  —  the  court  can  undoubtedly 
inquire  into  the  sufficiency  of  that  cause;  and  Chancellor  Kent, 
in  his  commentaries,  (vol.  2pp.  28,  31,)  says'  that  the  act  of 
1818,  which  is  now  incorporated  into  the  revised  statutes, 


NEW  YORK.  FEBRUARY,   1851  237 

The  People  v.  Tompkins. 

gave  to  the  officer  before  whom  the  writ  of  habeas  corpus  was 
returned,  authority  to  revise  the  cause  of  commitment  and  to 
examine  into  the  truth  of  the  facts  alleged  in  the  return,  and 
the  officer  may  examine  into  the  merits  of  the  commitment,  and 
hear  the  allegations  and  proofs  arising  thereon  in  a  summary 
way,  and  dispose  of  the  party  as  justice  may  require. 

The  language  of  the  statute  is  equally  explicit  — 

Section  38  enacts,  that  the  court  or  officer  before  whom  the 
party  shall  be  brought  on  such  writ  of  habeas  corpus,  shall 
immediately  after  the  return  thereof,  proceed  to  examine  into 
the  facts  contained  in  such  return,  and  into  the  cause  of  confine- 
ment or  restraint  of  such  party,  whether  the  same  shall  have 
been  upon  commitment  for  any  criminal  or  supposed  criminal 
matter  or  not 

Section  43  enacts,  If  it  appear  that  the  party  has  been 
legally  committed  for  any  criminal  offence,  or  if  he  appear  by 
the  testimony  offered  with  the  return,  or  upon  the  hearing 
thereof,  to  be  guilty,  £c.,  he  shall  be  remanded,  and  by  section 
48,  it  is  enacted,  that  the  prisoner  may  deny  the  facts  in  the 
return,  or  allege  any  fact  to  show  his  imprisonment  unlawful, 
and  thereupon  the  officer  shall  proceed  to  hear  the  proofs  and 
allegations  produced  on  either  side,  and  dispose  of  the  party  as 
the  justice  of  the  case  may  require. 

It  is  under  this  array  of  authority,  settling  thus  clearly  at 
once  my  authority  and  my  duty,  that  I  approach  the  main 
question  involved  in  these  proceedings. 

And  here  two  things  are  apparent:  1.  That  the  act  imputed 
to  the  defendant  is  not  a  crime;  and  2,  that  it  is  not  proved. 

The  offence  charged  is,  that  on  the  29th  day  of  January, 
1851,  Ray  Tompkins  did  designedly,  and  by  means  of  false 
pretences,  cheat  and  defraud  Benjamin  Nathan  out  of  one 
hundred  shares  of  the  stock  of  the  Farmers'  Loan  and  Trust 
Co.,  of  the  value  of  $3,000,  and  more. 

From  the  depositions,  it  appears  that,  on  the  28th  of  Janu- 
ary, Nathan  agreed  to  sell  to  Tompkins  one  hundred  shares  of 
that  Co.,  deliverable  and  payable  the  next  day.  On  the  next 
day,  before  transferring  the  stock,  Nathan  sent  for  a  check,  and 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Tompkins. 


received  for  answer  that  Tompkins  had  sent  his  check  to  bt 
certified,  and  would  send  it  to  Nathan  in  ten  or  fifteen  minutes, 
and  relying  upon  this  promise,  Nathan  thereupon  transferred 
the  stock  to  Tompkins.  Tompkins  never  asked  to  have  it  trans- 
ferred to  him;  but  the  usual  time  for  transferring  having 
arrived,  Nathan,  without  any  request  from  Tompkins,  trans- 
ferred it.  A  previous  transaction  between  these  parties  had  been 
conducted  in  the  same  manner.  Nathan  having  transferred  the 
stock  on  that  occasion  and  afterwards  received  Tompkins' 
certified  check. 

Upon  this  state  of  things,  it  is  perfectly  apparent  that 
Nathan's  reliance  was  upon  the  promise,  that  a  check  would  be 
sent  in  ten  or  fifteen  minutes,  and  not  solely  on  the  fact  that 
Tompkins  had  sent  his  check  to  be  certified.  And  nothing  can 
be-  better  settled  than  the  rule,  that  such  a  promise  is  not  a 
false  pretence  under  the  statute. 

To  constitute  the  crime  under  the  statute,  two  things  are 
essential:  a  false  representation  as  to  an  existing  fact,  and  a 
reliance  upon  that  representation  as  true.  Both  these  ingredi- 
ents are  wanting  in  this  case;  for  the  reliance  evidently  was 
mainly  on  the  promise  to  send  the  check.  This  in  no  respect 
constitutes  the  crime. 

The  only  representation  of  an  existing  fact  that  there  is  to 
be  found  in  the  case,  is  that  in  respect  to  Tompkins  having 
sent  his  check  to  be  certified  His  having  done  so  would 
be  of  no  possible  value  to  Nathan,  unless  it  had  been  followed 
up  by  being  sent  to  Nathan,  and  it  is  apparent  that  Nathan's 
reliance  was  upon  Tompkins'  credit  and  his  promise  to  send 
him  the  check,  and  not  upon  the  fact  that  he  had  sent  it  to  be 
certified  —  a  fact  which  alone  could  be  of  no  value  to  Nathan, 
and  upon  which  alone,  or  even  chiefly,  it  is  manifest  that 
Nathan  did  not  rely. 

The  best  test  is  to  suppose  the  case  should  go  on  to  trial. 
The  question  to  be  submitted  would  be,  whether  Nathan  trans- 
ferred the  stock,  relying  solely  on  the  representation,  that 
Tompkins  had  sent  his  check  to  be  certified,  necessarily  ex- 
cluding all  idea  of  Tompkins'  responsibility,  for  there  was  no 


NEW  YORK.  FEBRUARY,   1851. 


The  People  v.  Tompkins. 


representation  as  to  that  excluding  the  promise  to  send  him  the 
check,  for  that  is  no  element  of  the  crime,  and  excluding  the 
idea  that  the  check  would  be  certified  when  sent  for  that  pur- 
pose, for  there  was  no  representation  that  it  wodld  be. 

It  is  idle  to  suppose  that  a  conviction  would  be  warranted, 
or  be  allowed  upon  such  a  state  of  things. 

The  fact  that  in  his  cross-examination,  Nathan  conveys  the 
idea,  that  his  reliance  was  upon  Tompkins'  promise  that  he 
would  send  his  certified  check  in  a  few  minutes,  —  the  fact 
that  the  stock  was  voluntarily  transferred  on  the  29th,  pursu- 
ant to  a  previous  contract  of  sale,  and  without  Tompkins  ever 
having  requested  it  to  be  transferred,  and  the  fact  that  it  was 
in  Tompkins  presence  that  Nathan  transferred  the  stock,  and 
without  a  word  passing  between  them,  would  be  entirely  con- 
trolling on  the  subject. 

But  even  if  it  were  otherwise,  even  if  it  could  be  found  that 
Nathan's  reliance  had  been  upon  the  representation  that  Tomp- 
kins had  sent  his  check  to  be  certified,  there  is  no  evidence 
that  such  was  an  untrue  allegation.  It  appears  that  the  check 
was  made  out,  but  it  nowhere  appears  that  it  had  not  been  sent 
to  be  certified.  And  the  falsity  of  the  pretence  is  not  estab- 
lished, nor  even  attempted  to  be.  And  for  aught  that  appears, 
it  may  be  perfectly  true  that  Tompkins  had  sent  the  check  to 
be  certified;  and  if  it  may,  then  there  is  no  foundation  what- 
ever for  the  criminal  charge  on  which  the  defendant  is  arrested. 

1  have  thus  far  confined  my  attention  to  the  charge  against 
the  defendant  named  in  the  warrant;  and  though  I  do  not  find 
in  the  depositions  sufficient  evidence  to  support  that  charge,  it 
is  still  my  duty,  under  the  statute,  to  inquire  whether  the  depo- 
sitions show  him  guilty  of  any  criminal  offence. 

The  examinations  before  the  magistrate  took  a  very  wide 
range,  inquiring  into  all  the  transactions  of  the  defendant  on 
the  day  of  his  failure,  and  on  the  argument  considerations  were 
urged  in  reference  to  the  moral  propriety  of  his  conduct  on  that 
occasion.  With  the  latter  topic  I  have  nothing  to  do.  I  am 
not  authorized  to  inquire  whether  his  conduct  squared  with 
strict  morals,  or  a  high  standard  of  commercial  honor  I  am 


240  DECISIONS  IN  CRIMINAL  CASES. 

The  People  ».  Tompkins. 

to  inquire  merely  whether  a  legal  crime  had  been  committed, 
and  whether  there  is  probable  cause  to  suspect  the  defendant  to 
have  be-en  guilty  of  it.  None  of  the  counsel  for  the  prosecution 
suggested  that  the  depositions  showed  the  commission  of 
any  other  crime,  than  that  of  obtaining  the  stock  from  Nathan 
by  false  pretences.  Nor  upon  looking  into  the  depositions  do 
I  find  any  other  charged.  The  defendant's  failure  seems  to 
have  come  upon  him  suddenly  and  unexpectedly.  His  transac- 
tions on  the  day  of  his  failure  do  not  seem  to  have  been  out  of 
the  ordinary  course  of  his  business,  nor  upon  a  larger  scale 
than  usual.  All  the  money  he  received  on  that  day,  as  well  as 
several  thousand  dollars  of  a  balance  remaining  in  bank, 
except  $25,  he  appropriated  to  the  payment  of  debts,  which 
seem  to  have  been  justly  owing  by  him,  and  which,  at  all 
events,  are  not  in  these  proceedings  impeached.  In  such  appro- 
priations, he  preferred  some  debts  over  others.  Whether  it 
was  lawful  or  proper  for  him  to  make  such  preferences,  is  not 
a  question  now  before  me.  All  that  I  have  to  do  is  to  ascer- 
tain whether  it  was  legally  criminal  for  him  to  do  so.  It  cer- 
tainly was  not;  and  as  that  is  the  only  offence  imputed  to  the 
defendant,  besides  that  growing  out  of  the  transaction  with 
Nathan,  there  is  no  legal  warrant  for  holding  him  in  custody, 
and  he  ff.ust  be  discharged;  and  he  is  accordingly  discharged 


ALBANY,  MAY,  1851.  34 1 


SUPREME  COURT     Albany  General  Term,  May,  1851.    Watson, 
Parker  and  Wright,  Justices. 

HOUGHTALING  vs.  KELDERHousE  and  others. 

A  person  convicted  of  perjury  is  an  incompetent  witness,  though  he  has  been 
pardoned'by  the  governor,  aud  the  pardon  purports  to  restore  him  to  all  his 
civil  rights,  the  legislature  having  provided  that  such  convict  shall  not  be 
received  as  a  witness  till  such  judgment  be  reversed.  Such  is  the  law,  though 
the  exclusive  power  of  pardon  be  vested  in  the  governor. 

Such  incapacity  to  testify  is  the  result  of  a  rule  of  evidence  and  not  a  punish- 
ment of  the  offence. 

Where  a  defendant  proves  the  making  of  an  admission  by  the  plaintiff,  the 
latter  has  a  right  to  give  evidence  in  explanation  of  the  admission  and  to  have 
the  witness  state  all  that  was  said  upon  the  subject  at  the  time. 

This  suit  was  originally  commenced  before  a  justice  of  the 
peace  in  assumpsit  on  a  promissory  note.  The  defence  was 
usury.  The  plaintiff  recovered  before  the  justice  on  the  4th  of 
September,  1846.  The  defendant  appealed,  and  the  cause  was 
tried  in  the  Albany  common  pleas,  where  the  plaintiff  abo 
recovered.  On  the  trial  in  the  court  of  common  pleas,  several 
exceptions  were  taken  by  the  defendant's  counsel,  who  brought 
a  writ  of  error  to  this  court.  The  facts  appear  sufficiently  in 
the  opinion  of  the  court 

H.  G.  Wheaton,  for  the  plaintiff. 
R.  W.  Peckham,  for  the  defendant. 

By  the  Court,  PARKER,  J.  The  most  important  question  in 
this  case  is  whether  James  R.  Brice,  who  was  offered  on  the 
part  of  the  defence,  was  a  competent  witness?  It  appeared 
that  he  had  been  convicted  of  perjury  in  this  state  and  sent  to 
the  state  prison  in  1834,  and  was  pardoned  by  the  governor  in 
1840.  The  pardon  expressly  purported  to  restore  him  to  all 
his  civil  rights.  The  court  below  held  he  was  still  incompe- 
tent as  a  witness,  under  our  statute,  and  refused  to  admit  him 
to  testify;  to  which  decision  the  defendant's  counsel  excepted. 

VOL.  I.  31 


242  DECISIONS  IN  CRIMINAL  CASES. 

Houghtaling  r.  Kelderhouse. 

The  statute  (2  Rev.  Stat.  567,  2d  ed.  §  1]  provides  that  a 
person  convicted  of  perjury  "  shall  not  thereafter  be  received  as 
a  witness  to  be  sworn  in  any  matter  or  cause  whatsoever,  until 
the  judgment  against  him  be  reversed."  In  all  other  cases  of 
felony  the  person  convicted  is  declared  incompetent  to  testify 
unless  he  be  pardoned  [2  Rev.  Stat.  586,  §23].  The  statute, 
therefore  recognizes  the  efficacy  of  a  pardon,  to  restqre  the  com- 
petency of  a  witness  in  all  cases  of  conviction,  except  for  per 
jury. 

It  is  urged  by  the  defendant's  counsel  that  inasmuch  as  the 
exclusive  and  full  power  to  pardon,  for  all  offences  except 
treason  and  in  cases  of  impeachment,  was  vested  by  the  con- 
stitution in  the  governor  [Const,  of  1821,  art.  3,  §  5],  the  legis- 
lature had  no  power  to  restrict  the  operation  of  the  pardon,  in 
a  case  of  perjury;  and  that  therefore  the  effect  of  the  pardon 
in  question  was  to  render  Brice  a  competent  witness. 

The  doctrine  of  a  restoration  of  the  competency  of  a  witness 
by  pardon,  is  comparatively  of  modern  origin.  Lord  Coke 
(2  Bids.  154)  is  an  authority  against  it.  The  maxim  recognized 
was  Poena  potesttolli,  culpa  perennis  erit.'"1  But  at  a  later  day 
the  doctrine  was  established  by  Lord  Holt  and  others,  in  several 
decisions.  (Rex  v.  Ford,  2  Salk.  691;  Rex  v.  Grecpe,  id.  514; 
Rex  v.  Crosby,  id.  689;  3  Salk.  155.)  It  was  then  held  that 
when  the  conviction  was  at  common  law,  in  which  case  an  in- 
ference was  only  a  consequence  of  the  judgment,  the  king's 
pardon  restored  the  party  to  his  testimony;  but  \vhen  the  con- 
viction was  for  perjury,  upon  the  statute,  the  person  convicted 
could  not  be  restored  to  his  credit  by  the  king's  pardon;  and 
the  reason  assigned  was  that  by  the  statute  it  was  part  of  the 
judgment  that  he  be  infamous  and  lose  the  credit  of  testimony. 
In  such  case  it  was  held  he  might  be  restored  by  a  statute  par- 
don. (2  Salk.  691;  Dives  v.  Mestayer,  5  Esp.  Rep.  94;  Bull. 
JV.  P.  292;  Phil.  &  Ames  on  Ev.  21,22;  2  Harg.  Jur.  Jirg. 
221.)  The  statute  on  which  that  opinion  was  based  was  5 
Eliz.  Ch.  9,  §6,  which  provided  that  when  a  person  was  con- 
victed of  perjury  under  that  act  "  the  oath  of  such  person  or 
persons  so  offending,  from  thenceforth  shall  not  be  received  in 


ALBANY,  MAY,   1851.  243 

Hovghtalir.g  v.  Kelderhouse. 

any  court  of  record  within  this  realm  of  England  and  Wales, 
or  the  marches  of  the  same,  until  such  time  as  the  judgment 
given  against  the  said  person  or  persons  shall  be  reversed  by 
attaint  or  otherwise." 

The  cases  above  cited  show  that  in  England,  in  case  of  a 
conviction  under  this  statute,  competency  as  a  witness  might 
be  restored  by  a  statu/e  pardon,  though  the  king's  pardon  was 
ineffectual  for  that  purpose.  And  it  is  claimed  that  inasmuch 
as  in  this  state  the  legislature  has  no  power  to  pardon  for  such 
offence,  but  the  exclusive  power  is  vested  in  the  governor,  his 
pardon  must  be  effectual  to  restore  the  convict's  competency. 
This  is  certainly  very  plausible  reasoning;  and  if  there  were  no 
interests  concerned  except  those  of  the  convict,  that  is  to  say, 
if  the  incompetency  to  testify  was  merely  a  punishment  for  the 
offence,  I  should  deem  the  position  impregnable.  It  must  be 
conceded  that  full  power  to  pardon  in  case  of  perjury  is  vested 
in  the  governor;  and  I  think  that  power  exclusive.  In  this 
respect  the  distribution  of  powers,  in  our  state,  differs  some- 
what from  that  of  the  English  government,  where  pardons  may 
sometimes  be  granted  by  act  of  parliament.  (2  Black.  Com. 
402;  Fort.  43;  2  Hawk.  P  C.  397.) 

But  though  the  legislature  of  our  state  has  no  authority  ta 
grant  a  pardon  for  perjury,  it  has  full  power  fo  say  who  shah 
be  competent  witnesses.  It  may  by  statute  admit  or  exclude 
any  class  of  persons,  such  as  parties,  or  persons  interested,  or 
those  convicted  of  crimes.  The  admissibility  of  all  witnesses 
is  a  matter  entirely  within  legislative  control  and  subject  to  its 
regulation.  It  is  true  the  disqualification  of  a  person  convicted 
of  perjury  may  operate,  to  some  extent,  as  a  punishment  of'the 
convict.  But  whether  such  testimony  shall  be  received,  is  a 
question  in  which  others  have  a  much  larger  interest.  It  is  a 
question  of  public  policy,  with  regard  to  which  there  may  well 
be  differences  of  opinion.  On  the  one  side,  it  may  be  said 
parties  ought  not  to  be  deprived  of  such  testimony,  at  the 
hazard  of  being  unable  to  establish  a  legal  right.  On  the  other 
hand,  it  may  be  urged  that  such  testimony  would  be  dangerous 
to  the  rights  of  litigants,  and  unsafe  in  the  administration  of 


244 


DECISIONS  IX  CRIMINAL  CASES. 


Houghtaling  v.  Kelderhouse. 


justice.  The  legislature,  in  deciding  this  question,  have  re- 
garded the  latter  argument  as  outweighing  the  former,  and 
have  excluded  the  evidence.  And  although  this  disqualifica- 
tion has  been  regarded  as  part  of  the  judgment,  yet  I  think  it 
not  merely  a  penalty  for  the  offence,  but  an  enactment  of  a  rule 
of  evidence  within  the  legislative  jurisdiction  and  beyond  the 
reach  of  an  executive  pardon.  I  concur  entirely  in  the  view  on 
this  subject  expressed  by  a  writer  in  the  American  Jurist  (11 
Jim.  Jurist,  360),  who  says,  "  But  although  an  incapacity  to 
testify,  especially  considered  as  a  mark  of  infamy,  may  really 
operate  as  a  severe  punishment  upon  the  party,  yet  there  are 
other  considerations,  affecting  other  parties,  which  may  well 
warrant  his  exclusion  from  the  halls  of  justice.  It  is  not  con- 
sistent with  the  interests  of  others,  nor  with  the  protection 
which  is  due  to  them  from  the  state,  that  they  should  be  exposed 
to  the  peril  of  testimony  from  persons  regardless  of  the  obliga- 
tion of  an  oath;  and  hence  on  grounds  of  public  policy,  the 
legislature  may  well  require  that,  while  the  judgment  itself 
remains  unreversed,  the  party  convicted  shall  not  be  heard  as 
a  witness.  The  statute  of  Elizabeth  itself  seems  to  place  the 
exception  on  the  ground  of  a  rule  of  evidence  and  not  on  that 
of  a  penal  fulmination  against  the  offender.  The  intent  of  the 
legislature  appears  to  have  been  not  so  much  to  punish  the 
party  by  depriving  him  of  the  privilege  of  being  a  witness  or  a 
juror,  as  to  prohibit  the. courts  from  receiving  the  oath  of  any 
person  convicted  of  disregarding  its  obligation." 

It  will  be  observed  that  the  language  of  our  act  is  very 
similar  to  that  of  the  English  statute.  Both  declare  that  the 
testimony  shall  not  be  received.  The  writer  in  the  Jurist  above 
quoted,  commented  on  the  fact  that  the  act  of  Congress  (btat. 
of  U.  S.  Jlp.  3,  1790,  §  18)  which  declares  the  offender  shall 
thereafter  be  rendered  incapable  of  giving  testimony,  Sac.,  until 
such  judgment  be  reversed,  has  more  the  appearance  of  a  penalty 
upon  the  offender  than  the  language  of  the  English  act.  But 
the  statute  of  Ihis  state  is  certainly  liable  to  no  such  criticism, 
and  I  doubt  whether  it  will  be  recognized  whenever  the  question 
shall  arise  under  the  act  of  Congress.  It  seems  to  me  that 


ALBANY,   MAY,   1551.  £45 


Houghtaling  v.  Kelderhouse. 


whether  the  statute  provides  that  he  shall  be  incapable  of  giving 
testimony,  or  says  that  his  testimony  shall  not  be  received,  in 
cither  case  it  will  be  viewed  as  a  rule  of  evidence,  though  it 
may  also  be  a  punishment  of  guilt. 

This  view  of  the  law  is  taken  in  1  Greenleaf's  Evidence  378 
(note )  and  was  acted  upon  by  Chancellor  Kent  in  Holdredge 
v.  Gillespie  (2  Johns.  Ch.  Rep.  35),  who  excluded  the  deposition 
of  a  witness  that  had  been  convicted  of  perjury,  though  he  had 
been  pardoned  by  the  governor,  on  the  ground  that  the  statute 
declared  him  incompetent  till  the  judgment  was  reversed.  The 
statute  then  in  force  (1  Rev.  Laws,  171)  was  similar  to  the  pro- 
vision of  the  revised  statutes  above  quoted. 

It  is  said  a  construction  ought  not  to  be  given  to  the  statute 
that  would  deprive  the  governor  of  the  power  to  relieve  by 
pardon,  when  it  might  be  discovered,  too  late  to  obtain  a  re- 
versal of  the  judgment,  that  the  party  was  innocent.  The  an- 
swer is  that  if  the  legislature  has  power  to  deprive  others  of  the 
benefit  of  his  testimony,  they  must  also  have  power  to  restore 
it.  And  the  parties  interested,  so  far  from  being  remediless, 
would  have  only  to  apply  to  the  legislature  instead  of  the 
governor  for  relief.  I  am  therefore  of  the  opinion  that  the 
court  below  decided  correctly  in  rejecting  Brice  as  a  witness. 

There  were  other  exeeptions  taken  on  the  trial  in  the  court 
below  that  remain  to  be  considered.  After  the  plaintiff  had 
rested,  the  defendants  called  Robert  Frazier,  and  proved  by  him 
an  admission  made  by  the  plaintiff  that  he  was  in  danger  of 
losing  the  amount  of  the  note  in  question,  because  he  had  re 
ceived  more  than  lawful  interest.  The  plaintiff's  counsel  then 
cross  examined  the  witness.  In  the  course  of  the  cross  exam- 
ination the  witness  testified  that  the  plaintiff  said  "  he  had  re- 
ceived a  new  note,  and  that  was  worse  than  the  old  one."  On 
a  further  direct  examination  the  defendant's  counsel  asked  the 
witness  if  the  plaintiff  stated  why  the  new  note  was  worse 
than  the  first?  This  was  objected  to  by  the  plaintiff's  counsel, 
and  the  answer  was  excluded  by  the  courtj  to  which  decision 
the  counsel  for  the  defendant  excepted.  This  decision  was 
clearly  erroneous.  There  was  no  objection  to  the  form  of  the 


246  DECISIONS  IN  CRIMINAL  CASES. 

Baron  v.  The  People. 

question.  The  plaintiff's  counsel  had  called  out  an  additional 
admission,  and  it  was  the  right  of  the  defendant's  counsel  to 
inquire  further  in  regard  to  it,  and  to  have  all  that  was  said 
upon  the  subject  at  the  same  time. 

I  think  there  were  other  errors  committed  in  excluding  evi- 
dence on  the  cross  examination  of  Slingerland,  but  it  is  not 
necessary  to  examine  them  at  length,  for  the  error  I  have 
already  pointed  out  requires  a  reversal  of  the  judgment. 

The  judgment  must  be  reversed  with  costs,  and  a  new  trial 
awarded  in  the  Albany  county  court. 


SUPREME  COURT.     Monroe  General  Term,  June,  1851.     Welles, 
Taylor  and  Johnson  Justices. 

Louis  BARON  plaintiff  in  error  vs.  THE  PEOPLE  def 'ts  in  error. 

Where  a  verdict  in  a  criminal  case  is  appropriate  to  one  or  more  good  counts 
in  an  indictment,  and  can  be  deemed  to  have  been  passed  upon  and  to  have 
disposed  of  the  others,  the  good  counts  are  established  and  the  verdict  will 
stand,  notwithstanding  there  may  be  bad  counts  in  the  indictment:  but  if  it 
appear  that  some  of  the  counts  are  undisposed  of  by  the  verdict,  the  judgment 
rendered  on  such  verdict  will  be  reversed. 

An  accessory  can  not  be  tried  before  the  trial  and  conviction  of  the  principal 
offender. 

An  accessory  may  be  indicted  and  tried  in  the  county  where  the  offence  of  the 
accessory  was  committed,  notwithstanding  the  principal  offence  was  com- 
•nitted  in  another  county,  but  the  accessory  can  not  be  indicted  and  tried  in 
the  county  where  the  principal  offence  was  committed,  unless  his  offence  as 
accessory  was  committed  there. 

This  was  a  writ  of  error  to  the  court  of  sessions  of  Ontario 
county. 

The  plaintiff  in  error  was  indicted  in  the  court  below,  the 
indictment  containing  seven  counts,  substantially  as  follows: 

1st.  For  burglary  and  larceny. 

2d.  The  same,  being  a  second  offence;  stating  the  convic- 
tion for  the  first  offence  to  have  taken  place  in  Monroe  county 
general  sessions. 


ALBANY,  JUKE,  1851.  247 


Baron  v.  The  People. 


3d.  Charges  that  Samuel  Hicks,  Stephen  Cross,  Manlius 
Card,  Hiram  J.  Clark,  Benjamin  F.  Yerkes  and  William  Ack- 
ley on  the  29th  day  of  June  1849,  committed  a  certain  burglary 
and  larceny  in  the  town  of  East  Bloomfield,  Ontario  county, 
setting  out  the  offence  particularly;  that  Baron  (the  defendant 
in  the  court  below),  on  the  3d  of  October,  1842,  was  convicted 
of  burglary  and  larceny  in  the  court  of  general  sessions  of 
Monroe  county  and  sentenced  to  the  state  prison  for  five  years; 
that  after  he  had  suffered  the  full  term  of  imprisonment  accord- 
ing to  such  sentence,  and  on  the  29th  day  of  July,  1849,  said 
Baron  did  incite,  move,  procure,  aid,  counsel,  hire  and  com- 
mand the  said  Hicks,  Cross,  Card,  Clark,  Yerkes  and  Ackley 
to  commit  the  said  burglary  and  larceny  in  this  count  first 
mentioned. 

4th.  Substantially  like  the  third,  alleging  that  the  said 
Hiv:ks,  Cross,  Card,  Clark,  Yerkes,  and  Ackley  were  indicted, 
&c.,  for  the  said  burglary  and  larceny,  and  that  Ackley  had 
been  tried  and  convicted  thereon,  prout  pat et  per  recordum  — 
in  other  respects,  this  count  is  similar  to  the  third. 

5th.  For  grand  larceny,  alleging  the  property  stolen  to  be 
the  property  of  Moses  Sheppard. 

6th.  Like  the  5th,  alleging  the  property  stolen  to  be  the 
property  of  some  person  or  persons  to  the  jurors  unknown. 

7th.  Like  the  5th,  alleging  the  property  stolen  to  be  the  pro- 
perty of  Luther  Sheppard  and  Moses  Sheppard. 

The  defendant  in  the  court  below  pleaded  not  guilty  to  the 
said  indictment,  and  was  tried  and  convicted  in  that  court  in 
February,  1850.  The  verdict  of  the  jury,  as  appears  by  the 
record,  is  in  the  following  words,  viz.:  "  That  the  said  Louis 
Baron  is  guilty  of  the  felony  aforesaid  as  an  accessory  before 
the  fact,  and  for  a  second  offence,  as  by  the  indictment  afore- 
said is  above  supposed  against  him."  Upon  this  verdict,  the 
court  below  gave  judgment  against  the  defendant,  that  he  be 
imprisoned  in  the  state  prison  at  Auburn  for  the  term  of  nine 
years,  eight  calendar  months  and  twenty  days. 

Various  questions  arose  upon  the  trial,  which  are  sufficiently 
adverted  to  in  the  opinion  which  follows. 


248  DECISIONS  IN  CRIMINAL  CASES. 

Baron  v.  The  People. 
E.  G.  Lapham  and  Jl.  Warden,  for  plaintiff  in  error. 

S.  V.  R.  Mallory  (district  attorney),  for  defendants  in  error. 

WELLS,  Justice,  delivered  the  opinion  of  the  court  as  follows: 

I.  The  first  point  made  for  the  plaintiff  in  error  is,  that  the 

verdict  and  judgment  is  uncertain;  that  it  does  not  appear  for 

what  offence  the  conviction  was   had,  and  that  it  is  not  found 

that   any  principal  offence  was  committed  by  the  direction  or 

order  of  the  defendant  below,  and  it  is  contended  that  the  first 

i 

fifth,  sixth  and  seventh  counts  of  the  indictment  are  not  dis- 
posed of  in  any  way  by  the  verdict.  The  indictment  contained 
seven  counts — among  them,  is  one  for  a  second  offence  of 
burglary  and  larceny  —  another  charges  that  six  other  persons 
were  indicted  for  burglary  and  larceny,  and  one  of  them,  Ack- 
ley,  was  convicted.  It  does  not  state  whether  any  of  them 
besides  Ackley  had  been  tried.  It  is  to  be  taken  therefore,  for 
the  purposes  of  this  case,  that  Ackley  was  tried  separately  and 
that  the  others  have  not  yet  been  tried.  The  count  then 
charges  a  previous  burglary  and  larceny  by  the  defendant 
Baron  and  a  conviction  and  judgment  thereon,  before  the  com- 
mission of  the  said  offence  by  Ackley  and  the  others  who  were 
jointly  indicted  with  him,  and  that  the  defendant  Baron  did 
incite,  move,  procure,  aid,  counsel,  advise  and  command  the 
other  six,  including  Ackley,  to  commit  the  burglary  and  larceny 
for  which  they  were  indicted,  &c. 

The  finding  of  the  jury  as  appears  from  the  record  in  this 
case  is,  that  "  the  said  Louis  Baron  is  guilty  of  the  felony 
aforesaid  as  an  accessory  before  the  fact,  and  for  a  second 
offence  of  larceny,  as  by  the  indictment  aforesaid  is  above 
supposed  against  him." 

If  the  verdict  is  appropriate  to  any  one  or  more  good  counts 
in  the  indictment  and  can  be  deemed  to  have  passed  upon  and 
disposed  of  the  others,  the  good  counts  are  established,  and  the 
verdict  should  stand,  nptwithstanding  there  may  be  bad  counts 
in  the  indictment. 

The  rule  is  different  in  a  civil  case,  where  there  are  several 


MONROE,  JUNE,   1831.  249 

Baron  v.  The  People. 

counts  in  the  declaration  and  a  general  verdict  with  damages, 
for  in  such  case,  if  there  is  a  bad  count  joined  with  others  that 
are  good,  the  court  can  not  know  but  the  damages  are  assessed 
in  whole  or  in  part  upon  the  bad  count  But  in  the  case  of  an 
indictment  a  general  verdict  of  guilty  proves  that  all  the 
counts  are  true,  the  good  as  well  as  the  bad  ones,  and  it  is  pre- 
sumed the  court  in  rendering  judgment  measured  the  punish- 
ment upon  the  good  counts  alone. 

The  verdict  in  this  case  pronounces  the  defendant  below 
guilty  of  the  felony  as  an  accessory  before  the  fact  and  of  a 
second  offence  of  larceny  as  charged  in  the  indictment.  There 
are  three  counts  for  simple  larcenies  alone  and  one  for  burglary 
ani  larceny.  Does  this  finding  by  fair  intendment,  dispose  of 
those  counts?  If-  it  does  not,  it  seems  to  me  the  judgment  is 
erroneous.  The  defendant  is  neither  convicted  nor  acquitted 
upon  them,  and  upon  another  indictment  for  the  same  offences 
could  neither  plead  autrefois  acquit  or  autrefois  convict. 

The  language  of  the  verdict  as  contained  in  the  record 
"  felony  aforesaid,"  is  broad  enough  to  apply  to  all  the  counts, 
but  the  words  "as  an  accessory  before  the  fact,"  immediately 
follow;  which  limit  and  restrict  their  meaning  to  the  two 
counts  charging  him  as  an  accessory.  This  seems  to  be  the 
fair  interpretation  of  the  language  of  the  record.  It  is  not  like 
the  case  of  an  indictment  for  a  crime,  under  which  the  accused 
may  be  convicted  of  another  offence  of  the  same  character,  but 
of  a  minor  degree  —  as,  for  instance,  an  indictment  for  murder 
and  a  conviction  for  manslaughter,  or  an  indictment  for  an 
assault  and  battery  with  a  felonious  intent  and  a  conviction  for 
the  simple  assault  and  battery. 

But  it  is  a  question  of  construction  of  the  language  of  the 
record  merely,  whether  the  finding  of  the  jury,  as  contained  in 
the  record,  can  be  understood  to  apply  or  refer  to  the  three 
counts  for  simple  larceny.  The  verdict  proceeds  to  say  that 
the  defendant  below  is  guilty  "  of  a  second  offence  of  larceny," 
and  concludes  "as  by  the  indictment  aforesaid  is  above  sup- 
posed against  him."  These  words  apply  to  both  branches  of 

VOL.  I.  32 


250  DECISIONS  IN  CRIMINAL  CASES. 

Baron  v.  The  People. 

the  finding,  that  of  guilty  of  the  felony  as  an  accessory  and 
of  the  second  offence  of  larceny. 

There  is  a  count  charging  the  crime  of  larceny  as  a  second 
offence,  and  the  last  part  of  the  finding  I  think  must  be  taken 
as  applying  to  that  count  only,  for  I  take  it  a  conviction  for  a 
second  offence  can  not  be  had  upon  a  count  for  a  single  first 
offence. 

The  three  counts  for  simple  larceny,  as  well  as  the  one  for 
burglary  and  larceny  therefore  appear  to  be  entirely  undisposed 
of  and  untouched  by  the  verdict. 

II.  The  court  below  charged  the  jury  that  the  defendant 
could  be  convicted  as  an  accessory,  before  the  trial  and  con-, 
viction  of  the  principal  offenders.  In  this  the  court  clearly 
erred.  By  the  common  law,  no  man  could  be  convicted  as  an 
accessory  until  after  the  conviction  of  the  principal  felon.  He 
could  not  be  tried  alone  before  the  principal,  for  nun  constat 
but  the  person  charged  as  principal  might  be  acquitted.  They 
might  be  tried  together,  but  in  that  case  a  conviction  of  the 
accessory  and  an  acquittal  of  the  principal  would  be  irregular 
and  void,  as  presenting  the  absurdity  of  an  accessory  without  a 
principal.  (4  Bl.  Com.  40,  323.) 

The  court  below  admitted  that  such  substantially  was  the 
rule  of  the  ancient  common  law,  but  held  it  was  not  the  law  at 
present.  The  only  change  in  the  law  in  this  particular  that  I 
am  aware  of,  is  by  our  statute  (2  R.  S.  727,  §  49),  which 
declares  that  "  an  accessory  before  or  after  the  fact,  may  be 
indicted,  tried,  convicted  and  punished,  notwithstanding  the 
principal  felon  may  have  been  pardoned  or  otherwise  discharged 
after  his  conviction."  This  statute  is  substantially  the  same  as 
the  English  statute  of  Anne,  both  of  which  were  passed  to 
meet  a  rule  of  the  old  common  law  by  which  the  accessory 
could  not  be  arraigned  until  the  principal  had  been  attainted, 
which  might  be  avoided  by  pardon,  clergy,  or  his  death  after 
conviction  and  before  attainder.  But  the  statute  does  not 
allow  of  a  conviction  of  the  accessory  before  that  of  the  princi- 
pal, any  more  than  the  common  law.  It  only  allows  it  in  cer 
tain  cases  after  the  conviction  of  the  principal  felon 


MONROE,  JUNE,  1851.  251 

Baron  v.  The  People. 

The  law  has  been  further  changed  in  England  by  the  statute 
7th  Geo.  IV,  ch.  64,  by  which  an  accessory  may  there  be  now 
tried  before  the  principal.  (Rose.  Cr.  Ev.  217.)  But  we  have 
no  such  statute. 

It  is  claimed  by  the  counsel  for  the  defendant  in  error  that 
the  conviction  of  Ackley,  one  of  the  principals,  having  been 
legally  established,  the  part  of  the  charge  complained  of  was 
the  expression  of  a  mere  abstract  opinion,  and  that  as  it  could 
not  have  influenced  the  verdict,  it  can  not  here  be  alleged  as 
error.  It  was  a  question  for  the  jury  to  determine,  whether 
Ackley  had  or  had  not  been  convicted.  They  were  to  judge  of 
that  fact  by  the  evidence  before  them.  And  although  I  incline 
to  think  the  paper  evidence,  in  connection  with  the  testimony 
of  the  former  county  clerk,  was  sufficient  to  establish  the  con- 
viction^of  a  man  by  the  name  of  William  Ackley,  yet  the 
jury  were  to  be  satisfied  that  he  was  the  identical  man  or  one 
of  the  men  to  whom  the  testimony  in  reference  to  the  commis- 
sion of  the  principal  offence  related.  We  may  suppose  all  this 
was  satisfactorily  done;  still  the  jury  were  by  the  charge  left  at 
liberty  to  leave  the  question  of  Ackley's  conviction  out  of  view 
entirely.  It  seems  to  me  this  will  not  do  in  a  case  of  felony 

III.  The  court  charged  the  jury  that  the  defendant  might  be 
convicted  in  Ontario  county  although  whatever  he  did  in  con- 
nection with  the  offence  was  in  the  county  of  Monroe.  In  this 
I  think  there  was  also  an  error.  It  was  at  one  time  doubted 
whether  at  common  law  an  accessory  in  one  county  to  a  felony 
committed  in  another  could  be  indicted  in  either.  (Hawk.  P 
C.  book  2,  ch.  25,  §  54;  Keil.  67;  Dyer,  38.) 

Our  statute  (2  R.  S.  727,  §  45)  provides  that  the  accessory 
may  be  indicted  and  tried  in  the  county  where  the  offence  of 
the  accessory  was  committed,  notwithstanding  the  principal 
offence  was  committed  in  another  county.  But  there  is  no 
statute  or  rule  of  law  allowing  the  accessory  to  be  indicted  and 
tried  in  the  county  where  the  principal  offence  was  committed, 
unless  his  offence  as  accessory  was  committed  there. 

As  the  conviction  and  judgment  must  be  reversed  for  the 


252  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Orcutt. 

reasons  above  mentioned,  it  is  unnecessary  to  consider  the 
other  points  raised  upon  the  argument.  Conviction  and  judg- 
ment reversed,  and  new  trial  ordered  in  the  court  below. 


ONEIDA  OYER  AND  TERMINER,  June,  1851.  Before  W.  F.  Jlllen, 
Justice  of  the  Supreme  Court,  and  the  Justices  of  the  Sessions. 

THE  PEOPLE  vs.  JAMES  J.  ORCUTT. 

It  is  sufficient,  in  an  indictment  for  arson  in  the  1st  degree,  to  describe  a 
building,  which  has  been  usually  occupied  by  persons  lodging  therein  at 
night,  as  a  "dwelling  house,"  although  it  may  not  be  a  dwelling  house  in 
the  ordinary  and  popular  acceptation  of  that  term.  (2  R.  S.  657,^J  9.) 

A  person  is  presumed  to  intend  the  ordinary  consequences  of  his  acts;  and  it 
devolves  upon  a  person  charged  with  crime  to  rebut  this  presu-nption,  by 
evidence  of  a  different  intent. 

A  design  to  produce  death  is  not  necessary  to  constitute  the  offence  of  arson 
in  the  first  degree,  either  at  common  law  or  under  the  statute. 

It  is  immaterial  whether  the  person  charged  with  this  offence  has  knowledge 
that  the  building  burned  has  usually  or  at  any  time  been  occupied  by  persons 
lodging  therein.  (2  Buss,  on  Crimes,  552  ».  (/),  Phil.  Ed.  of  1845). 

Any  building  is  a  "  dwelling  house,"  within  the  act  denning  arson  in  the 
first  degree,  which  is  in  whole  or  in  part  usually  occupied  by  persons  lodging 
therein  at  night,  although  other  parts,  or  the  greater  part,  may  be  occupied 
for  an  entirely  different  purpose. 

Indictment  for  arson  charging  the  defendant  with  burning  in 
the  night  time  a  dwelling  house  in  the  city  of  Utica,  in  which 
there  were  at  the  time  human  beings.  The  indictment  also 
contained  counts  describing  the  building  as  a  barn,  immediately 
connected  with,  joined  to  and  a  part  of  a  dwelling  house.  The 
fire  occurred  on  the  night  of  the  8th  of  April,  1851,  and  wr.s 
kindled  by  the  prisoner,  in  a  stable  or  barn  in  which  were 
several  horses.  This  stable  or  barn  was  connected  with  and 
framed  into  another  barn  and  stable,  known  as  the  livery  barns. 
The  roofs  and  frames  were  united,  and  the  lofts  were  open  from 
one  to  the  other,  and  they  were  occupied  by  one  man  and  as 


OXEIDA,  JUNE,  1851.  053 


The  People  v.  Orcutt. 


one  barn  and  stable,  and  both  were  entirely  destroyed,  with 
eleven  horses  and  a  large  amount  of  livery  property.  The 
barns  and  stables  were  at  right  angles  with  each  other,  the 
yard  being  in  the  angle.  At  the  end  of  the  part  known  as  the 
livery  barn  a  room  was  finished  off,  which  was  used  as  an  office 
and  a  place  for  buffalo  robes,  whips,  &c.,  and  which  was  occu- 
pied as  a  sleeping  room  by  the  drivers  and  men  employed  about 
the  stable.  For  several  .years,  this  part  of  the  building  had 
been  constantly  occupied  as  a  sleeping  room  by  one  or  more 
persons,  and  at  the  time  of  the  fire  three  or  more  persons  habit- 
ually slept  there,  having  no  other  lodging  place,  and  keeping 
their  wardrobe  there  and  were  then  actually  sleeping  there. 
Evidence  was  given  tending  to  show  that  the  prisoner  was 
guilty  of  setting  the  fire.  At  the  close  of  the  evidence  for  the 
prosecution, 

F.  Kernan,  for  the  prisoner,  insisted  that  there  was  a  vari- 
ance between  the  proof  and  the  indictment,  in  the  description 
of  the  building  destroyed:  that  the  description  of  the  building 
in  the  indictment  was  untrue;  that  it  was  neither  a  dwelling 
house  nor  a  barn  connected  with,  joined  to  and  making  a  part 
of  a  dwelling  house;  that  it  was  a  barn,  and  occupied  as  such, 
and  should  have  been  so  described,  with  proper  averments,  to 
bring  it  within  the  class  of  buildings  which  the  statute  declares 
shall  be  deemed  dwelling  houses,  in  defining  the  offence  of 
arson  in  the  first  degree. 

S.  B.  Garvin  (district  attorney),  for  the  people. 

The  court  decided  that  there  was  no  variance.  That  if  the 
building  had  been  usually  occupied  by  persons  lodging  therein 
at  night,  it  was  well  described  as  a  dwelling  house  within  the 
statute  (2  R.  S.  657,  §9);  that  it  was  sufficient  to  name  the 
edifice  by  the  statutory  description  of  a  "  dwelling  house," 
leaving  it  for  the  proof  to  detail  the  particulars  which  entitle 
it  to  be  thus  described,  under  the  statute  regulating  the  punish- 
ment of  arson. 


254  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t>.  Orcutt. 
The  cause  was  summed  up  by 

•    J.  Jl.  Spencer,  for  the  prisoner,  and 
The  District  Attorney,  for  the  people. 

The  counsel  for  the  prisoner  urged,  among  other  things,  1st. 
That  the  edifice  destroyed  was  not  a  dwelling  house,  within  the 
statute;  that  the  statute  was  designed  to  modify  the  common 
law  and  exclude  from  the  first  degree  of  arson  the  burning  of 
all  rough  buildings,  as  barns,  sheds,  &c.,  unless  actually  at- 
tached to  a  building  known  as  a  dwelling  house  in  the  populai 
sense.  2d.  That  the  evidence  of  a  malicious  intent  was  wamine, 

O  ' 

citing  and  commenting  upon  People  v.  Cotteral  (18  Johns.  Rep. 
115).  3d.  That  a  design  to  produce  death  was  necessary  to 
authorize  a  conviction  of  arson  in  the  first  degree;  that  if  there 
was  no  such  design,  the  offence  was  mitigated  to  the  second 
degree. 

The  court  charged  the  jury,  1st.  That  if  from  the  evidence 
they  were  satisfied  that  the  prisoner  in  setting  the  fire  did  not 
intend  to  burn  the  building,  but  intended  to  accomplish  some 
other  object,  the  case  would  be  within  the  People  v.  Cotteral, 
in  which  the  prisoners  having  been  convicted  of  arson,  the 
judgment  was  arrested  upon  the  ground  that  it  was  proved, 
beyond  all  reasonable  doubt,  that  the  prisoners  merely  designed 
to  effect  their  escape  from  jail,  and  did  not  intend  to  burn  the 
jail.  That  the  prisoner  must  be  presumed  to  have  intended  the 
ordinary  consequences  of  his  acts,  and  that  it  devolved  upon 
him  to  show  the  absence  of  an  intent  to  burn  the  building. 

2d.  That  to  authorize  a  conviction  for  the  offence  charged, 
it  was  not  necessary  to  establish  a  design  to  produce  death. 
That  such  design  did  not  enter  into  the  offence  of  arson  in  the 
first  degree,  either  at  common  law  or  under  the  statute.  That 
it  was  immaterial  whether  the  prisoner  had  knowledge  that  the 
building  was  occupied  by  human  beings  lodging  therein,  either 
habitually  or  at  the  time.  It  was  sufficient  if  they  believed  upon 
the  evidence,  that  the  building  was  in  fact  thus  occupied,  and 


OXEIDA,  JUXE,  18.51.  255 


The  People  v.  Orcutt. 


that  the  prisoner  willfully   burned  it   in  the  night  time,  there 
being  some  human  being  at  the  time  therein,  and      v  ;„ 

3d.  That  the  jury  would  inquire,  1st.  Whether  the  barn  or 
stable  in  which  the  fire  was  kindled,  and  that  in  which  was  the 
office  and  sleeping  room,  was  one  and  the  same  building;  and 
2d.  If  they  did  not  constitute  one  building  and  only  one,  but 
were  two  separate  and  distinct  buildings,  whether  the  former 
was  joined  to,  immediately  connected  with  and  a  part  of  the 
latter,  and  if  either  of  these  propositions  should  be  found  by 
them  in  the  affirmative,  they  would  inquire,  3dly,  whether  the 
building  had  been  usually  occupied  by  persons  lodging  therein 
at  night,  and  whether  at  the  time  of  the  commission  of  the 
offence  there  was  some  human  being  therein;  and  that  if  they 
were  satisfied  that  the  building  had  been  and  was  thus  occupied, 
the  willful  setting  fire  to  and  burning  it  in  the  night  time,  con- 
stituted the  offence  of  arson  in  the  first  degree  (2  R.  S.  657, 
§  9,  10).  That  the  statute  had  defined  a  dwelling  house,  and 
that  within  the  statute,  whether  a  building  was  a  dwelling 
house  or  not,  depended  upon  the  fact  whether  it  was  usually 
occupied  by  persons  lodging  therein  at  night,  and  not  upon  the 
popular  understanding  of  that  term;  that  it  was  not  necessary 
that  the  whole  building  should  be  thus  occupied — if  a  part  was 
occupied  as  a  sleeping  room,  it  was  sufficient,  although  other 
parts  might  be  used  for  other  and  entirely  different  purposes. 

The  jury  found  the  prisoner  guilty  of  arson  in  the  first  degree, 
and  he  was  sentenced  to  be  executed.  The  sentence  was  com- 
muted by  the  governor  to  imprisonment  in  the  state  prison  for 
life,  on  account  of  the  youth  of  the  prisoner,  and  some  circum- 
stances which  made  it  a  case  proper  for  the  exercise  of  this 
power  by  the  executive.  The  conviction  upon  the  facts,  and 
the  decision  and  charge  of  the  court,  were  express  ly  approved 
by  the  governor. 


256  DECISIONS  IN  CRIMINAL  CASES 


NEW  YORK  OVER  AND  TERMINER.  September,  1851.  Before  Ed- 
monds, Justice  of  the  Supreme  Court,  and  two  of  the  Alder- 
men. 

THE  PEOPLE  vs.  HENRY  CARNAL. 

On  a  motion  for  a  new  trial,  on  the  ground  of  improper  conduct  of  the  jury, 
the  affidavits  of  the  jurors  are  not  admissible  to  prove  such  improper  con- 
duct. 

A  communication  made  to  a  jury  while  deliberating,  by  a  party  in  whose  favor 
the  verdict  is  rendered  will  avoid  the  verdict;  but  a  verdict  will  not  be  set 
aside  because  of  such  communication,  where  it  is  made  by  the  losing  party 
or  by  a  stranger  to  the  controversy. 

Where,  on  a  trial  for  murder,  while  the  jury  were  consulting  together  upon 
their  verdict,  one  of  them  sent  the  officer  in  charge  of  them  to  the  court,  to 
request  that  the  statute  or  some  book  containing  the  law  of  manslaughter 
should  be  sent  to  them,  and  the  officer  returned  and  informed  the  jury  that 
"  Judge  Edmonds  said  they  had  nothing  to  do  with  manslaughter,"  and  they 
found  the  prisoner  guilty  of  murder,  on  motion  before  the  court  of  Oyer  and 
Terminer  for  a  new  trial,  on  the  ground  of  such  communication  to  the  jury, 
a  new  trial  was  denied. 

This  was  a  motion  for  a  new  trial.  The  prisoner  had  been 
convicted  in  March,  1851,  of  the  murder  of  Charles  M.  Rous- 
seau and  sentenced  to  be  executed  on  the  2d  day  of  May,  1S51. 
Before  that  time  the  governor  respited  his  execution,  to  enable 
him  to  avail  himself  of  a  bill  of  exceptions  taken  on  the  trial. 
An  application  was  then  made  to  the  governor  for  a  pardon  or 
commutation  of  sentence,  on  the  ground  that  after  the  jury 
retired  to  deliberate  on  their  verdict,  the  presiding  judge  had 
improperly  given  them  private  instructions  in  the  absence  of 
the  prisoner  or  his  counsel.  The  governor  refused  the  applica- 
tion, but  again  respited  the  execution  until  the  19th  of  Septem- 
ber, to  give  the  prisoner  an  opportunity  of  moving  the  court 
for  a  new  trial  upon  the  affidavits  which  were  laid  before  him, 
and  this  motion  was  made  accordingly. 

On  the  part  of  the  prisoner,  affidavits  were  read  from  eleven 
of  the  jurors,  setting  forth  that  the  jury,  after  they  had  retired, 
requested  the  officer  having  them  in  charge  to  ask  the  court  to 
furnish  them  with  the  law  of  manslaughter,  or  instruct  them  as 


NEW  YORK,  SEPTEMBER,   1861.  257 

The  People  v.  Carnal. 

to  what  that  law  really  was,  and  that  the  officer  in  a  few  min- 
utes returned  and  stated  that  the  jury  as  matter  of  law  had 
nothing  whatever  to  do  with  manslaughter,  that  the  indictment 
was  for  murder  only,  and  the  case  was  not  one  of  manslaugh- 
ter, and  that  Judge  Edmonds  had  directed  the  officer  so  to  state 
to  the  jury,  and  one  of  the  jurors  was  made  to  swear  that  but 
for  that  communication  he  could  not  have  conscientiously 
brought  in  a  verdict  of  murder. 

On  the  part  of  the  prosecution,  the  affidavits  of  ten  of  the 
jurors  were  read,  stating  that  the  jurors  were  at  once  unan- 
imous in  finding  the  prisoner  guilty,  but  that  one  of  them,  from 
his  repugnance  to  taking  life,  desired  to  confine  the  verdict  to 
manslaughter,  that  thereupon  one  of  the  jurors  directed  the  offi- 
cer to  request  the  court  to  send  them  the  statute  or  some  book 
containing  the  law  of  manslaughter  —  that  the  officer  gave  for 
answer:  Judge  Edmonds  says  you  have  nothing  to  do  with 
manslaughter —  and  that  this  communication  had  no  influence 
with  the  jury,  because  the  court  had  clearly,  in  their  charge, 
said  the  same  thing.  Some  of  the  jurors  stated  further,  that 
when  called  upon  to  make  their  affidavits  in  behalf  of  the  pri- 
soner, they  told  the  counsel  who  called  upon  them,  what 
occurred  as  they  now  related  it,  and  were  told  by  him  that  it 
was  matter  of  form  as  to  the  precise  words,  that  he  desired  the 
affidavit  to  show  the  fact  of  the  communication  from  the  court 
to  the  jury;  that  the  judge  had  no  right  to  communicate  with 
the  jury  except  in  open  court,  and  that  the  object  was  to  pro- 
cure a  commutation  of  the  punishment  to  imprisonment  for  life, 
and  not  to  apply  for  a  new  trial.  It  was  not  alleged  that  the 
court  had  authorized  the  officer  to  make  any  communication  to 
the  jury. 

Clinton  and  H.  F.  Clark  for  the  prisoner,  contended  that  the 
irregularity  of  the  officer  in  making  the  communication  to  the 
jury  without  the  order  of  the  court,  rendered  the  verdict  en- 
tirely void. 

Blunt  (district  attorney),  objected,  1.  That  the  affidavits  of 
the  jurors  could  not  be  read.  2.  That  the  court  after  sentence 
pronounced,  had  no  power  to  grant  a  new  trial.  «?.  That  the 

VOL.  I.  33 


258  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Carnal. 

irregularity,  though  it  might  subject  the  officer  to  punishment, 
in  no  manner  affected  the  verdict,  and  4.  That  the  granting  a 
new  trial  is  a  matter  in  the  discretion  of  the  court,  which  ought 
not  to  be  granted  in  this  case,  because  no  injury  had  been  done 
to  the  prisoner,  inasmuch  as  the  language  used  by  the  officer 
was  a  mere  repetition  of  that  which  had  already  been  used  by 
the  court  in  its  charge  to  the  jury,  and  because  the  witnesses, 
by  whom  alone  the  prisoner's  guilt  could  be  established,  had 
left  the  state  and  gone  to  parts  unknown  in  the  interior  of 
South  America,  never  to  return. 

EDMONDS,  Presiding  Justice,  delivered  the  opinion  of  the 
court 

The  facts  on  which  the  new  trial  is  moved  for,  as  established 
by  the  affidavits  are  simply  these:  that  while  the  jury  were 
consulting  together  of  their  verdict,  one  of  them  called  the  offi- 
cer having  them  in  charge  and  said  to  him,  "  ask  the  court  to 
send  the  jury  the  statute  or  some  book  containing  the  law  of 
manslaughter,"  that  the  officer  after  a  short  interval  returned 
and  said,  "  Judge  Edmonds  said  they  had  nothing  to  do  with 
manslaughter." 

The  officer  was  not  instructed  by  the  court  or  any  member 
of  it  to  make  any  communication  to  the  jury,  but  it  is  probable 
(though  on  that  subject  there  is  no  evidence),  that  when  the 
officer  made  the  application  for  the  book,  the  judge  refused  it 
in  the  language  used,  and  the  officer  instead  of  refusing  to 
speak  to  the  jury  —  as  he  ought  to  have  done,  having  no  leave 
from  the  court;  or  instead  of  saying  to  the  jury  "  you  can  not 
have  the  boo.k,"  —  conveyed  the  refusal  to  the  jury  in  the 
words  used  by  the  judge  in  giving  it  to  him. 

For  the  communication  thus  improperly  made  by  the  officer 
to  the  jury  without  authority  from  the  court,  a  new  trial  is 
moved  for,  and  the  question  is  whether  the  irregularity  is  one 
which  renders  the  verdict  void. 

If  such  is  the  rule  of  law,  it  must  be  rigidly  enforced,  how- 
ever untoward  the  event  which  works  such  a  result.  Of  the 
prisoner's  guilt  of  the  crime  of  murder,  not  a  doubt  can  remain 


NEW  YORK,  FEBRUARY,  1851.  £59 

The  People  v.  Carnal. 

on  any  rational  mind,  and  there  is  every  reason  also  to  believe, 
that  that  crime  was  perpetrated  while  he  was  attempting 
another  —  that  of  robbing  his  benefactors.  And  so,  too,  it  is 
equally  manifest  that  if  a  new  trial  is  now  granted,  the  pri- 
soner must  escape  the  punishment  which  the  law  denounces 
upon  the  crime  he  has  committed,  for  the  witnesses  by  whom 
alone  the  facts  can  be  proved  have  left  the  country  and  re- 
turned to  the  interior  of  South  America,  whence  their  testi- 
mony can  not  be  procured  so  as  to  be  used  on  the  trial.  And 
it  is  under  such  circumstances  that  the  court  is  called  upon  to 
recognize  the  principle,  that  an  unauthorized  communication 
to  the  jury  by  the  constable  having  them  in  charge,  renders 
their  verdict  void. 

If  this  be  so,  then  is  the  due  administration  of  justice  more 
under  the  control  of  the  ignorance  or  corruption  of  the  consta- 
bles who  are  in  attendance  at  the  court,  than  has  been  hitherto 
supposed. 

I  dismiss  from  view  entirely  the  consideration  how  far  the 
communication  influenced  the  jury;  and  for  two  reasons. 

In  the  first  place,  while  one  of  the  affidavits  on  the  part  of 
the  prisoner  conveys  the  idea  that  but  for  that  communication, 
one  of  the  jurors  "  could  never  have  reconciled  it  to  his  con- 
science to  concur"  in  a  finding  of  murder,  the  affidavit  of  the 
same  juror  and  those  of  nine  of  his  colleagues  produced  on  the 
part  of  the  prosecution  clearly  establish  that  the  jury  were 
already  unanimous  in  their  opinion  that  the  prisoner  was  guilty 
of  murder;  that  the  question  of  manslaughter  was  agitated 
among  them  merely  from  "  a  repugnancy  "  on  the  part  of  the 
juror  "  to  taking  human  life;"  that  all  of  them  had  previously 
very  distinctly  understood  from  the  charge  of  the  court,  that 
there  was  no  question  of  manslaughter  in  the  case,  and  that 
their  verdict  was  in  no  respect  affected  by  the  communication. 

In  the  second  place,  while  the  affidavits  were  admissible  t )  / 
prove  an  impropriety  on  the  part  of  the  constable,  they  were  in 
no  respect  admissible  to  prove  any  on  the  part  of  the  jury;  and 
it  surely  would  be  an  impropriety  of  a  high  character,  for  a 
jury  to  take  the  law  of  a  case  from  the  constable  at  their  door 


260 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Carnal. 


I  therefore  examine  the  question  in  its  naked  aspect,  whether, 
as  matter  of  law,  such  a  communication  does  necessarily  render 
the  verdict  void. 

It  is  undoubtedly  true  that  any  communication  to  a  jury 
while  deliberating,  made  by  a  party  in  whose  favor  their  ver-r 
diet  is  rendered,  will  avoid  their  verdict,  and  that,  no  matter 
whether  it  had  any  effect  upon  their  minds  or  not:  for  the  best 
of  reasons,  that  it  is  thus  alone  the  purity  of  the  trial  by  jury 
can  be  preserved.  But  we  were  shown  no  case,  though  we 
asked  for  one,  where  such  an  effect  has  ever  been  given  to  a 
communication  made  by  the  losing  party  or  by  a  stranger  to 
the  controversy,  nor  can  I,  by  my  own  researches,  find  any  such. 
And,  as  I  suppose,  for  an  equally  good  reason:  that  it  would  be 
giving  to  intermeddlers  a  power  and  control  over  the  adminis- 
tration of  justice  that  is  denied  even  to  the  courts. 

It  is  not  worth  while  to  spread  out  here  the  details  of  the  ex- 
amination which  I  have  made.  I  have  given  the  subject  the 
careful  consideration  its  vital  interest  to  the  prisoner  demands, 
and  the  conclusion  at  which  I  have  arrived  is  quite  satisfactory 
to  my  own  mind,  both  on  principle  and  authority. 

A  reference  to  two  or  three  cases  will  be  sufficient.  In  the 
case  of  Taylor  v.  Everett  (2  How.  Pr.  R.  23),  our  late  supreme 
court  held  that  a  communication  made  by  the  constable  to  a 
juror,  which  the  juror  swore  induced  him  to  agree  to  the  ver- 
dict, was  not  enough  to  set  it  aside,  though  the  conduct  of  the 
constable  was  deserving  of  severe  animadversion.  In  Harrison 
v.  Rowan  (4  Wash.  C.  C.  R.  32),  the  jury  after  they  went  out 
took  refreshments  without  leave  of  the  court.  The  court  held 
it  was  misbehavior  to  do  so,  but  the  verdict  would  not  be 
affected,  unless  they  were  furnished  by  the  party  in  whose  favor 
they  found.  So,  where  a  juror  had  left  his  seat  without  know- 
ledge of  the  court  or  either  party.  (Ex  parte  Hill,  3  Cow.  R. 
355.)  So,  too,  when  the  jury  had  retired  to  deliberate  on  their 
verdict.  (1  Cowen,  221.)  In  the  case  of  The  King  v.  Wolfe 
(1  Ch.  R.  401),  where  the  subject  was  very  fully  examined  by 
the  English  judges,  and  in  The  People  v.  Douglass  (4  Cow.  33\ 
in  our  own  state,  it  was  held  that  the  mere  separation  .of 


NNW  YORK,  SEPTEMBER,   1851.  261 

The  People  v.  Carnal. 

the  jury,  without  any  further  abuse,  would  not  affect  the  ver- 
dict. 

And  in  Everett  v.  Youells  (4  Barn,  ty  Jld.  681),  where  the 
servant  of  one  of  the  jurors  privately  conveyed  some  fooJ  to 
him  while  they  were  deliberating,  the  court  held  that  it  might 
be  ground  for  imposing  a  fine,  but  it  was  not  a  reason  for 
setting  aside  the  verdict,  and  Parke,  J.,  with  great  propriety 
says:  "  The  officer  who  attended  the  jury  may  be  punishable, 
but  it  would  be  a  fearful  thing  if  verdicts  could  be  set  aside  on 
such  grounds  as  this." 

It  would  be  so  indeed,  and  this  case  would  be  a  strong  ex- 
emplification of  the  truth  of  the  remark.  Here  is  no  com- 
plaint that  the  prisoner  was  not  rightfully  convicted  or  that  the 
verdict  was  not  fully  warranted  by  the  evidence,  no  complaint 
that  the  law  was  improperly  laid  down  by  the  court.  The  jury 
were  unanimous  in  a  verdict,  which  the  court  has  already  had 
occasion  to  express  its  approval  of.  The  witnesses  by  whom 
alone  the  prisoner's  guilt  can  be  established,  are  beyond  the 
jurisdiction  of  the  court.  It  was  a  frightful  crime  which  the 
prisoner  committed,  and  it  is  now  claimed  that  he  shall  escape 
the  consequences,  because  the  constable  in  charge  of  the  jury 
was  guilty  of  an  impropriety!  This  can  not  be.  Both  prin- 
ciple and  authority  forbid  it. 

I  purposely  abstain  from  examining  the  other  questions 
raised  on  the  argument,  because  having  on  the  merits  arrived 
at  a  conclusion  adverse  to  the  motion,  it  must  be  denied,  what- 
ever our  views  upon  those  other  questions. 


262 


DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     New  York  General  Term,  October,  1851. 
Edmonds,  Mitchell  and  King,  Justices. 

f IENRY  CARNAL  plaintiff  in  error  vs.  THE  PEOPLE  &c.  defendants 

in  error. 

A  motion  to  set  aside  a  stay  of  proceedings  and  to  quash  a  writ  of  error,  in  a 
capital  case,  may  be  made  by  the  district  attorney;  and  the  prisoner's 
counsel  can  not  avail  himself  of  the  objection,  that  such  motion  should  have 
been  made  by  the  attorney  general. 

A  justice  of  the  supreme  court  has  power  to  allow  a  writ  of  error,  and  to  make 
an  order  staying  proceedings,  after  conviction,  in  a  capital  case. 

The  mode  of  reviewing  a  decision  of  the  Oyer  and  Terminer,  as  it  existed 
previous  to  the  adoption  of  the  Revised  Statutes,  compared  with  the  present 
practice. 

The  prisoner  had  been  tried  and  convicted  of  the  murder  ol 
Charles  M.  Rousseau.  A  writ  of  error  having  been  allowed 
by  Justice  Harris  with  a  stay  of  proceedings,  a  motion  was 
made  before  the  supreme  court  sitting  in  the  first  judicial  dis- 
trict, where  the  writ  was  returnable,  to  quash  the  writ  of  error 
and  to  vacate  the  stay  of  proceedings. 

The  grounds  of  the  application  are  fully  set  forth  in  the 
opinion  of  the  court. 

JV.  Bowditch  Blunt  (district  attorney),  for  the  people. 

I.  The  motion  is  divisible  into  two  branches,  one  going  to 
quash  the  entire  proceeding,  the  other  simply  to  vacate  the  stay 
of  proceedings.  The  motion  to  quash  presents  two  questions, 
one  purely  legal,  resting  upon  the  form  and  character  of  the 
writ:  the  other,  a  mixed  question  of  law  and  fact.  Upon  the 
first  question,  it  will  be  necessary  to  examine  the  history  -of 
writs  of  error  at  common  law,  and  the  changes,  if  any,  effected 
by  the  statute.  What  then  was  the  province,  power  and  pro- 
ceedings of  and  upon  writs  of  error  at  common  law.  First.  Its 
province  was  to  remove  the  record  for  review  into  the  court  of 
King's  Bench,  and  from  the  King's  Bench  to  the  House  of 
Lords.  Second.  Its  power  was  to  reverse  the  judgment  in  cases 


NEW  YORK,  OCTOBER,   1851.  263 

Carnal    v.   The  People 

nor  capital,  for  notorious  mistake  in  the  judgment,  or  other 
parts  of  the  record,  and  in  capital  cases  to  reverse  attainders. 
Third.  In  cases  of  misdemeanors,  writs  of  error  were  not 
allowed,  of  course,  but  on  sufficient  probable  cause  shown  to 
the  attorney  general  or  public  prosecutor,  and  then  they  were 
grantable  of  common  right  and  ex  debito  justitia.  Fourth.  In 
capital  cases,  writs  of  error  were  only  allowed  ex  gratia,  and 
not  without  express  warrant  under  the  king's  sign  manual,  or 
with  the  consent  of  the  attorney  general.  ( 1  Chitty,  Cr.  Law, 
p.  749.)  Fifth.  In  no  case  at  common  law  did  the  writ  of  error 
operate  as  a  stay  of  proceedings.  (Lanett  v.  The  People,  7 
Cowen,  339;  Rex  v.  Wilkes,  4  Burr  Rep.  2527.) 

II.  Assuming  that  the  judge  had   no  power  to  grant  a  stay 
of  proceedings,  and  the  present  writ  of  error  containing  such 
express  direction  therein,  what  is  the  effect  of  such  provision? 
Does  it  Hvoid  the  whole  writ,  or  is  the  direction  being  a  nullity 
mere  surplusage?     I  conceive  the  writ  itself  must  be  set  aside. 
If  the  order  was  separate  from  the  writ,  forming  no  part  thereof, 
the  court  might  discriminate,  but  as   an   essential  part   of  the 
writ,  in  the  present  case,  if  improperly  or  illegally  allowed,  the 
whole  writ  must  fall.    The  court  can  not  separate  the  writ  into 
parts  retaining  one  and  rejecting  the  other — the  excess  of  the 
authority  renders  the  whole  void.    The  writ  is  evidently  a  writ 
under  the  15th  and    16th  sections,  and   if  inapplicable  to  the 
case  in  hand  must  fall. 

III.  The  allowance  of  the  writ  was  obtained  by  the  sup- 
pression of  material  facts,  and  being  a  writ  ex  gratia,  this  court 
upon  a  knowledge  of  such  facts,  has  the  power  to  revoke  this 
exercise  of  grace. 

IV.  The  previous  application  for  a  writ  of  error  to  a  judge 
in  this  district,  and  the  subsequent  proceedings  of  the  counsel 
for  the  convict  as   connected  with  said  application,  form  an 
additional  reason  for  vacating  the  present  writ  of  error.     The 
effect  of  tolerating  or  sustaining  a  proceeding  of  this  description, 
will  be,  to  encourage   tardiness;  to  reward  willful  delay;  and 
to  uphold  by  subtle  refinements  and  technical  abstractions,  the 


264 


DECISIONS  IN  CRIMINAL  CASES. 


Carnal  v.  The  People. 


practice  of  destroying  just  convictions  on  the  merits;  and  thus 
subvert  the  ends  of  public  justice. 

V.  Finally,  the  sustaining  of  this  writ  of  error,  is  calculated 
to  pollute  the  fountains  of  justice,  to  destroy  the  public  confi- 
dence in  our  judicial  tribunals,  and  to  render  our  laws,  instead 
of  being  a  terror  to  evil  doers,  a  byeword  and  a  mockery. 
Fiat  justitia,  mat  ccelum. 

H.  L.  Clinton,  for  the  prisoner. 

By  the  Court,  EDMONDS,  J. — The  prisoner  was  convicted  of 
murder  at  the  Oyer  and  Terminer  in  New  York,  in  March  last, 
and  was  sentenced  to  be  executed  in  May.  Before  the  day 
appointed  for  his  execution,  his  counsel  prepared  a  bill  of 
exceptions,  obtained  a  reprieve  of  execution  until  July,  and 
applied  to  the  judge  who  presided  at  the  trial  for  the  allowance 
of  a  writ  of  error.  Before  that  application  was  passed  upon, 
the  counsel  for  the  prisoner  withdrew  it,  and  gave  notice  of  an 
application  to  set  aside  the  conviction  on  the  ground  of  irregu- 
larity, and  obtained  from  the  governor  a  further  reprieve,  in 
order  to  make  that  motion.  On  the  day  following  the  decision 
of  that  motion  adverse  to  the  prisoner,  his  counsel  obtained 
from  a  judge,  out  of  the  district,  an  allowance  of  a  writ  of  error 
on  the  bill  of  exceptions,  and  an  order  staying  all  proceedings 
on  the  execution  until  the  decision  on  the  writ  of  error. 

In  regard  to  the  objection  made  by  the  prisoner's  counsel 
against  the  district  attorney's  appearing  in  the  case  and  making 
this  motion,  it  is  enough  to  say,  that  under  the  statute  (2  R.  6'. 
741,  §21),  the  district  attorney  has,  at  least,  concurrent  power 
with  the  attorney  general;  and  it  will  be  time  enough  to  deter- 
mine which  has  paramount  authority  when  a  conflict  shall 
arise  between  them.  In  the  mean  time,  it  is  not  competent  for 
the  prisoner  to  raise  the  question.  It  is  sufficient  for  him  that 
the  motion  against  him  is  made  by  one  having  authority  to 
make  it.  The  main  motion  is  to  quash  the  writ  of  error,  on 
two  grounds.  First,  because  of  concealment  of  material  facts 
from  the  officer  who  allowed  the  writ;  and  second,  because  that 


NEW  YORK,  OCTOBER,  J851.  265 


Carnal  t>.  The  People. 


officer  had  no  power  to  allow  a  writ  of  error,  incorporating  into 
it  an  order  to  stay  proceedings.  In  respect  to  the  first  point, 
we  took  occasion  to  say,  on  the  argument,  that  the  explanation 
of  the  prisoner's  counsel  was  entirely  satisfactory.  And  all  that 
is  left  us  to  consider  is,  whether  the  judge  had  power  to  stay 
proceedings  on  the  judgment  after  a  sentence  had  been  pro- 
nounced. Upon  this  question,  which  is  one  of  construction  of 
a  statute,  we  have  no  aid  from  adjudications.  We  have  been 
referred  to  only  one  case  (Freeman's)  where  such  an  order  has 
been  granted,  and  in  that  case  the  right  to  grant  it  seems  not 
to  have  been  a  subject  of  discussion  or  adjudication. 

I  confess  my  first  impression  on  this  subject  was  adverse  to 
the  existence  of  the  power.  The  section  of  the  statute  so  often 
referred  to  (2  R.  S.  658,  §  15)  is  very  explicit  in  its  terms: 
"No  judge,  court  or  officer,  other  than  the  governor,  shall  have 
authority  to  reprieve  or  suspend  the  execution  of  any  convict 
sentenced  to  the  punishment  of  death."  "  The  revisers,  in  their 
report  recommending  the  section,  say  that "  the  preceding  or 
some  other  provisions  concerning  the  suspension  of  executions 
seem  absolutely  necessary.  Those  stated,  viz.,  lunacy  and 
pregnancy,  are  the  only  cases  where  the  interference  of  any 
other  power  than  that  of  the  governor  can  be  necessary.  With- 
out expressing  an  opinion  whether  the  judge  or  court  possess 
the  power  of  suspending  executions,  it  is  yet  deemed  an  unne- 
cessary power,  as  the  court  may  suspend  judgment  in  case  of 
doubt,  and  is  so  obviously  liable  to  abuse,  and  conflicts  with 
the  powers  and  duties  of  the  executive,  that  the  exercise  should 
be  expressly  prohibited."  It  will  be  observed  that  it  is  "  re- 
prieves and  suspensions"  that  are  alone  forbidden  to  all  others 
than  the  governor,  and  it  becomes  material  to  inquire  what  is 
meant  by  those  words  in  the  statute.  We  can  gather  that 
meaning  from  an  unmistakeable  source.  The  constitution  in 
force,  when  the  revised  statutes  were  enacted,  in  art  III,  §  5, 
says  he  "  shall  have  power  to  grant  reprieves  and  pardons  after 
conviction  for  all  offences,  except  treason  and  cases  of  impeach- 
ment. Upon  convictions  of  treason,  he  shall  have  power  to 

VOL.  I.  34 


266  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  v.  The  People. 

suspend  the  execution,"  &c.,  until  the  legislature  can  be  non- 
suited. 

The  revised  statute  (vol.  1,  165,  §3),  also  enacts,  in  regard 
to  his  granting  pardons  for  all  offences  and  suspending  exe- 
cution in  cases  of  treason;  thus  showing  plainly  what  reprieve 
or  suspension  it  was  that  was  to  be  prohibited  to  other  officers, 
lest  it  might  "  conflict  with  the  powers  and  duties  of  the  exe- 
cutive." The  statute  has  given  a  further  construction  to  the 
terms  under  consideration.  If  a  convict,  under  sentence  of 
death,  become  insane,  the  sheriff,  after  certain  preliminaries, 
may  "  suspend  the  execution"  until  the  governor  shall  issue  his 
warrant  directing  the  execution.  And  so,  in  case  of  pregnancy, 
he  may  in  like  manner  suspend  the  execution.  The  term  "  re- 
prieve" as  applied  to  convicts,  has  a  definite  meaning.  It  post- 
pones the  time  of  execution  to  a  definite  day,  while  "  suspen- 
sion" is  for  an  indefinite  period.  It  can  not  be  claimed,  nor  has 
it  been,  that  the  act  complained  of  by  the  district  attorney,  in 
this  case,  was  a  reprieve;  it  was  a  suspension,  if  at  all,  within 
the  statute  under  consideration.  The  object  of  the  statute  was 
to  prevent  a  conflict  between  the  executive  and  other  depart- 
ments of  the  government. 

The  power  of  the  governor  to  grant  an  absolute  pardon 
needed  no  protection  from  the  statute,  for  it  was  confessedly 
vested  in  him,  and  in  him  alone.  But  his  power  to  reprieve, 
that  is,  to  defer  the  execution,  until  a  definite  time,  did  require 
such  protection,  for  it  was  claimed,  and  had  then  recently  been 
exercised  by  other  officers.  In  Miller's  case,  in  1828,  reported 
in  9  Cowen,  730,  a  court  of  Oyer  and  Terminer,  after  sentence 
of  death  had  been  pronounced,  and  the  time  for  execution  had 
been  fixed,  had  interfered,  by  postponing  the  execution  to  a 
day  certain  and  beyond  that  originally  appointed,  and  had  thus, 
as  it  was  claimed  by  the  governor,  "  granted  a  reprieve."  The 
learned  judge,  whose  conduct  was  arraigned  on  that  occasion, 
in  a  letter  which  has,  I  believe,  received  the  almost  universal 
approbation  of  the  jurists  of  our  state,  claimed  that  the  power 
existed  in  the  judges  of  granting  reprieves  to  such  time  as 
might  be  necessary  to  give  room  to  apply  to  the  executive  for 


NEW  YORK,  OCTOBER,  185!. 


Carnal  v.  The  People. 


a  pordon;  that  it  belonged  of  common  right  to  every  tribunal 
which  was  invested  with  authority  to  award  execution;  and 
was  no  more  an  executive  than  a  judicial  power.  It  was  to  put 
an  end  to  this  claim  and  exercise  of  power  that  the  statute  in 
question  was  recommended  and  passed.  Thus  far  the  origin  of. 
the  statute  has  been  regarded  only  as  it  affected  reprieves. 
There  was  one  case,  and  only  one,  in  which  the  governor  was 
authorized  by  the  constitution  and  the  laws  to  suspend  a  sentence 
for  an  indefinite  period,  and  that  was  in  cases  of  treason,  where 
the  power  to  pardon  was  expressly  prohibited  to  him. 

Now,  as  the  power  claimed  by  the  judges  was  rested  upon 
grounds  broad  enough  to  reach  suspensions  also  as  well  as  re- 
prieves, and  as  the  case  of  treason  was  one  of  those  put  forth 
by  the  presiding  judge,  in  that  instance,  as  one  where  the 
power  might  be  exercised,  the  revisers  (and  the  legislature 
following  their  recommendation)  deemed  it  proper  to  extend  its 
prohibition  beyond  the  case  which  had  actually  occurred  to  one 
which  might  occur.  It  was  in  substance,  therefore,  enacted 
that,  as  the  governor  had  power  in  all  cases  except  treason  and 
impeachment,  to  reprieve  for  a  definite  period,  the  power  should 
not  be  exercised  by  any  other  officer,  and  that  as  he  had  power 
in  cases  of  treason  to  suspend  for  an  indefinite  period,  that 
power  in  like  manner  should  not  be  exercised  by  any  other 
one.  And  thus  the  object  of  the  statute  was  attained  in  guard- 
ing against  conflicts  between  the  executive  and  judicial  depart- 
ments. I  have  already  remarked  that  the  act  complained  of  in 
the  case  before  us  was  not  a  "  reprieve,"  within  the  sense  of 
that  word  as  used  in  the  constitution  and  the  statute;  and  I  now 
add,  it  is  equally  manifest  that  it  was  not  a  "  suspension"  within. 
that  sense. 

It  was,  however,  claimed  on  the  argument,  that  even  if  the 
strict  letter  of  the  statute  would  bear  such  construction,  it  was 
evidently  the  intention  of  the  legislature  to  prohibit  the  exercise 
of  any  power  over,  or  interference  with  the  sentence,  by  any  one 
other  than  the  governor,  and  that  the  act  complained  of  was 
clearly  within  the  spirit  of  the  statute;  and  we  have  not  over- 
looked that  view,  for  it  struck  us  with  much  force  on  the  ar- 


2(58  DECISIONS  IX  CRIMINAL  CASES. 

Carnal  t>.  The  People. 

gument;  the  revisers,  in  their  report,  touching  this  enactment, 
almost,  if  not  quite,  say  so;  and  to  ascertain  how  that  is,  it  is 
necessary  for  us  to  examine  somewhat  at  large  the  system  which 
thty  recommended  and  which  was  adopted  by  the  legislature. 
Prior  to  the  revised  statutes,  there  was  no  bill  of  exceptions  in 
criminal  case  and  writ  of  error  thereon,  for  the  review  of  con- 
victions in  the  Oyer  and  Terminer;  the  review  was  attained  in 
this  manner:  the  court  suspended  passing  sentence,  and  certified 
the  question,  which  was  in  doubt,  to  the  supreme  court,  who 
considered  and  passed  upon  it,  and  advised  the  court  below 
either  to  grant  a  new  trial,  or  proceed  to  pass  sentence,  and 
sometimes  when  the  convict  was  before  them,  they  passed  the 
sentence  themselves.  Whether  the  trial  should  be  reviewed 
was  at  the  option  of  the  court  before  which  it  was  had,  and  the 
jury  had  not  the  right  as  in  civil  cases  to  take  exceptions,  and 
carry  up  the  record  for  review. 

In  case  the  judge  consented  to  a  review,  the  necessary  time 
for  that  purpose  was  given,  either  by  the  court  suspending  its 
judgment,  or,  after  judgment  pronounced,  by  suspending  the 
execution.  The  legislature,  in  the  revised  statutes,  altered  this 
practice,  and  gave  to  the  prisoner  the  right  to  interpose  his  ex- 
ceptions, and  a  right  to  a  review  of  his  case,  and  they  adopted 
various  provisions  to  carry  out  their  intentions.  They  gave  the 
party  on  trial  an  absolute  right  to  a  bill  of  exceptions.  In 
certain  cases  the  district  attorney  might  sue  out  a  certiorari, 
and  so  bring  the  exceptions  to  the  attention  of  this  court,  and, 
on  the  other  hand,  the  defendant  might  sue  out  his  writ  of  error 
and  so  bring  up  the  case  for  review.  In  all  cases  not  capital, 
the  writ  of  error  was  one  of  right,  and  the  judge  was  bound  to 
allow  it.  In  capital  cases,  it  was  in  the  discretion  of  the  judge 
who  tried  the  cause,  or  any  other  judge  of  this  court,  to  allow 
or  refuse  the  writ.  And  then,  in  order  to  provide  the  time  ne- 
cessary for  a  review  of  the  case  in  the  higher  court,  it  was  pro- 
vided, in  all  cases,  that  the  writ  of  error  should  stay  of  delay 
the  execution  of  the  judgment,  or  of  the  sentence  thereon,  when 
there  was  an  express  direction  therein  that  it  should  operate  as 
a  stay. 


NEW  YORK.  OCTOBER.   1851.  269 

Carnal  v.  Tha  People. 

Thus  a  harmonious  system  was  adopted,  by  which  the  pri- 
soner's right  to  have  his  case  reviewed  was  secured  to  him, 
delays,  on  his  part,  were  provided  against,  and  ample  time  for 
such  review  was  provided  for.  The  act  of  the  judge  com- 
plained of  in  this  case  is,  that  while  he  thought,  in  the  exercise 
of  the  discretion  vested  in  him,  that  the  case  was  a  proper  one 
for  review,  he  provided  the  time  necessary  for  that  purpose,  by 
ordering  the  execution  of  the  sentence  to  be  stayed  until  the 
decision  of  this  court  on  such  review.  The  section  authorizing 
a  judge  to  order  a  stay  of  proceedings,  in  terms  applies  to  all 
criminal  cases  where  a  writ  of  error  is  allowed,  and  the  prior 
section  prohibiting  the  interference  of  any  officer  except  the 
governor  in  the  execution  of  a  sentence,  seems  to  apply  to  all 
cases  of  a  reprieve  or  suspension  in  a  capital  case.  If  the  two 
provisions  are  in  conflict  with  each  other,  then  the  one  which 
I  have  last  named  must  yield  to  the  other,  because  prior  in  its 
position  in  the  statute,  upon  the  well  known  rule  that  the  last 
expression  of  the  legislature  is  supposed  to  best  declare  its 
intention.  But  if  they  can  be  so  construed  as  to  allow  both  to 
operate,  and  they  do  not  necessarily  conflict,  such  construction 
must  be  given  to  them  as  will  allow  full  force  to  both.  The 
two  sections  may,  it  is  true,  be  made  to  conflict  by  a  certain 
construction,  but  they  do  not  necessarily  conflict.  On  the  other 
hand  they  may  be  so  construed  that  both  may  exist  harmo- 
niously together. 

Thus,  if  the  section  which  forbids  the  interference  of  a  judge 
is  confined  to  cases  where  the  review  or  suspension  is  for  pur- 
poses other  than  a  review  of  the  case  in  a  higher  court,  and 
the  section  which  allows  him  to  grant  a  stay  of  proceedings  is 
confined  solely  to  cases  where  such  review  is  sought,  they  can 
exist  in  unison  with  each  other,  and  in  entire  harmony  with  the 
whole  system.  There  will  then  be  left  with  the  judges  that 
which  is  conceded  to  them  in  all  other  cases,  civil  and  criminal, 
viz.  the  power  to  stay  proceedings  until  a  review  can  be  had 
in  a  higher  tribunal;  and  there  will  be  left  to  the  governor  his 
full  power  to  pardon,  suspend  or  reprieve  execution.  This  con- 
struction is  commended  to  our  favorable  regard,  not  merely  by 


270  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  v.  The  People. 

the  well  settled  rules  of  construction  as  to  enactments  apparently 
conflicting,  but  by  the  difficulty  we  encounter  in  finding  any 
reason  why  the  statute  should  exempt  capital  cases  from  a  rule 
which  applies  in  all  other  imaginable  cases,  civil  or  criminal, 
important  or  inconsiderable.  But  there  are  still  other  consid- 
erations. In  these  cases  the  court  before  whom  the  trial  is  had 
may  suspend  all  proceedings  after  conviction,  provided  they  do 
so  before  they  pronounce  sentence,  and  for  the  purpose  of 
having  the  case  reviewed.  What  good  reason  can  be  found  for 
denying  the  exercise  of  the  power  for  the  same  purpose,  after 
sentence  shall  be  pronounced? 

Again,  if  the  judge  who  presides  at  the  trial  should  refuse  to 
allow  the  writ  of  error,  his  decision  is  not  final,  but  another 
judge  may  allow  it.  Of  what  use  would  that  be  in  a  capital 
case,  if  the  proceedings  could  not  be  stayed?  The  allowance 
of  the  writ,  which  would  be,  in  effect,  a  certificate  by  a  judge 
of  this  court,  that  there  was,  probably,  error  in  the  conviction, 
would,  in  such  an  event,  be  the  cruelest  mockery,  and  the  writ 
be  rendered  entirely  nugatory.  This  view  may  be  carried  still 
further,  by  reflecting  a  moment  on  the  state  of  things  which 
existed  when  these  statutes  were  enacted.  It  was  a  circuit 
judge  who  presided  in  the  Oyer  and  Terminer.  He  might 
think  there  was  no  error  or  doubt  in  the  case,  and  so  refuse 
either  to  suspend  the  judgment,  or  allow  a  writ  of  error.  Yet, 
the  chancellor  or  a  judge  of  the  supreme  court  might  think 
there  was  error,  or  at  least  doubt,  and  allow  the  writ  of  error. 

Yet,  according  to  the  construction  contended  for,  he  (the  su- 
perior officer)  would  be  obliged  to  leave  the  prisoner  for  execu- 
tion with  that  doubt  or  error  hanging  around  the  case,  because 
the  inferior  officer  had  said  so.  There  is  another  consideration 
to  be  regarded.  Although  a  writ  of  error  did  not,  from  its 
nature,  operate  as  a  stay  of  proceedings,  yet  it  had  so  often  and 
so  generally  been  clothed  with  that  attribute  by  the  English 
statutes,  passed  before  our  revolution,  and  incorporated  into  our 
law,  that  at  the  time  of  revising  our  statutes,  it  was  generally 
supposed  it  would  operate  per  se.  The  revisers  so  understood 
it,  and  hence  the  enactment  is,  not  that  a  judge  may  grant  a 


NEW  YORK,  OCTOBER.   18-51 


Carnal  v.  The  People. 


stay,  but  that  no  writ  of  error  shall  operate  as  such  unless  it 
contains  in  it  a  direction  to  that  effect.  So  that  but  for  that 
restriction,  when  the  statute  gave  a  writ  of  error  in  criminal 
cases,  it  might,  in  the  then  prevailing  opinion,  be  of  itself  a 
stay;  and  the  repiieve  or  suspension  of  execution  that  might 
thus  be  worked  out,  would  be,  not  by  the  direct  interference  of 
"  any  court,  judge  or  other  officer,"  but  by  the  very  nature  and 
office  of  the  high  writ. 

Again,  the  statute  has  made  another  very  important  distinc- 
tion between  writs  of  error  in  capital  and  in  other  cases. 
In  all  cases  not  capital,  the  writ  may  be  allowed  by  any  county 
judge,  recorder,  and  supreme  court  commissioner,  and  without 
notice  to  the  public  prosecutor,  but  in  capital  cases  only  by  the 
chancellor,  judge  of  the  supreme  court  or  circuit  judge,  the 
highest  of  our  judicial  officers,  and  then  only  after  notice  to  the 
attorney  general  or  district  attorney.  Why  this  distinction,  if 
there  was  to  be  no  stay  of  execution?  Was  the  allowance  of 
the  writ  of  error  confined  to  those  officers  who  are  alone  trustee 
by  the  statute  with  the  power  to  stay  proceedings?  And  why, 
above  all,  this  care  and  caution  about  a  writ  of  error,  which, 
when  unaccompanied  by  a  stay  of  proceedings,  would  become 
so  illusive?  In  fine,  the  granting  of  pardons,  reprieves,  and 
suspending  executions  in  criminal  cases,  provided  for  in  one  of 
these  sections,  is  now,  under  our  existing  constitution  and  laws 
purely  an  executive  power,  confided  to  the  governor  alone;  and 
the  staying  proceedings  upon  a  judgment  in  either  a  civil  or 
criminal  case,  for  the  purpose  of  enabling  a  party  to  enjoy 
fully  the  benefit  of  the  reprieve  which  is  secured  to  him,  is 
purely  a  judicial  power,  which  has  always  been  exercised  by 
the  courts,  and  can  not  be  abandoned  without  subjecting  to 
great  peril  the  important  interests  confided  to  and  passed  upon 
in  them.  We  are,  therefore,  of  opinion  that  this  motion  must 
be  denied. 


272 


DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     New  York  General  Term,  December,  185 
Edmonds,  Mitchell  and  King,  Justices. 

HENRY  CARNAL  plaintiff  in  error  vs.  THE  PEOPLE  def'ts  in  error 

A  juror  may  be  challenged  to  the  favor,  after  a  challenge  to  the  same  juror, 

for  principal  cause,  has  been  tried  and  overruled. 
Where,  after  a  challenge  for  principal  cause  had  been  tried  and  overruled,  a 

challenge  to  the  same  juror  was  interposed  "  to  the  favor,"  it  was  held  that 

the  form   of  the  challenge  was  sufficient  without  stating  specifically  the 

grounds  of  challenge. 
Where  an  exception  is  taken  so  indistinctly  that  the  court  can   not  readily 

perceive  the  exact   point  of  the  objection,  the  appellate  court  will  disregard 

it.     Per  Mitchell,  J. 

This  was  a  writ  of  error  to  the  New  York  Oyer  and  Termi- 
ner,  where  the  plaintiff  in  error  was  tried  for  murder,  Justice 
Edmonds  presiding,  and  sentenced  to  death.  A  bill  of  excep- 
tions having  been  settled,  a  writ  of  error  was  allowed  with  a 
stay  of  pro  feedings.  The  questions  presented  by  the  exceptions 
are  fully  stated  in  the  opinion  of  the  court. 

H.  L.  Clinton  and  Jl.  L.  Jordan,  for  the  prisoner. 
JV.  B.  Blunt  (Dist.  Att'y),  for  the  people. 

KING.  J.  The  first  exception  to  the  proceedings  at  the  trial 
is  thus  stated  in  the  bill  of  exceptions: 

After  several  jurors  had  been  called  and  challenged  to  the 
favor  on  the  part  of  the  prisoner  and  set  aside,  Charles 
Mason  was  called  as  a  juror  and  appeared  and  was  chal- 
lenged for  principal  cause  on  the  part  of  the  prisoner,  and 
the  challenge  denied  by  the  counsel  for  the  people,  the  said 
Charles  Mason  having  been  sworn  to  testify  the  truth  as  to 
his  competency  to  serve  as  a  juror,  testified  that  he  had  not 
formed  or  expressed  any  opinion  as  to  the  guilt  or  innocence 
of  the  accused,  whereupon  the  challenge  for  principal  cause 
was  overruled,  and  the  counsel  for  the  prisoner  then  challenged 


NEW  YORK,  DECEMBER,  1851.  270 

Carnal  v.  The  People. 

twin  pr;rwn  *nr  \a\or,  but  the  court  thereupon  decided  that  the 
ju^or  hwvir^  bo^n  challenged  for  principal  cause,  and  on  such 
challenge  i-xj-Tiined  rs  to  his  indifferency,  and  said  cause  of 
challenge  having  been  hoard  and  decided  and  the  juror  found 
indifferent,  it  was  too  la^t  to  interpose  a  challenge  to  the  favor, 
to  which  decision  the  counsel  for  the  prisoner  then  and  there 
duly  excepted.  Said  person  Has  then  sworn  as  a  juror  to  try 
the  said  cause. 

It  is  contended  on  the  part  of  the  prisoner,  that  the  court 
erred  in  refusing  to  allow  a  challenge  to  the  favor,  after  chal- 
lenge for  principal  cause  had  been  overruled  by  the  court. 

On  behalf  of  the  people  it  is  contended  that  if  a  party  has 
more  than  one  cause  of  challenge  to  a  juror,  he  must  take  them 
all  at  once,  and  can  not,  after  the  decision  of  a  challenge  for 
cause,  again  challenge  the  same  juror  for  a  second  cause;  though 
he  may  peremptorily.  And  next,  that  the  court  was  at  liberty 
to  refuse  the  challenge,  no  cause  of  challenge  being  alleged. 

To  which,  on  behilf  of  the  prisoner,  it  is  replied  that  chal- 
lenges to  the  favor  are  to  be  tried  by  triers,  and  challenges  for 
principal  cause  may  be  tried  by  the  court:  that  the  rule  re- 
quiring all  causes  of  challenge  to  be  shown  at  once,  can  only 
mean  such  causes  of  challenge  as  are  triable  by  the  same  tri- 
bunal; that  all  principal  causes  of  challenge  must  be  urged 
together,  and  all  causes  of  challenge  to  the  favor  must  be  urged 
together,  but  not  all  causes  both  principal  and  to  the  favor  at 
the  same  time. 

And  next,  that  it  is  not  necessary  to  show  cause  of  challenge 
to  the  favor,  and  had  it  been  the  decision  of  the  court  disallow- 
ing any  challenge  to  the  favor  for  the  reasons  assigned,  ren- 
dered it  unnecessary  to  show  any  cause. 

Two  questions  arise  upon  the  first  exception  presented  in  the 
bill. 

First:  Did  the  judge  err  in  holding  that  after  the  decision 
disallowing  a  principal  challenge  to  a  juror  for  cause,  the  pri- 
soner could  not  interpose  a  challenge  to  the  favor  in  relation  to 
the  same  juror. 

And,  second,  if  the  judge  did  err,  was  the  error  committed  in 

VOL.  I.  35 


274 


DECISIONS  IN  CRIMINAL  CASES. 


Carnal  v.  The  People. 


reference  to  a  point  presented  by  the  case  and  upon  which  he 
was  called  to  pass,  or  upon  an  abstract  proposition  of  law  not 
applicable  to  the  matter  before  him. 

As  to  the  first  question,  there  are  rules  laid  down  in  the  books 
on  the  subject  of  challenges  which,  if  taken  without  qualifica- 
tion and  to  the  extent  which  the  generality  of  their  terms  im- 
port, would  fully  sustain  the  position  that  where,  upon  a  prin- 
cipal challenge  for  cause,  a  juror  had  been  found  indifferent, 
the  same  juror  could  not  be  challenged  to  the  favor. 

Lord  Coke  is  usually  cited  as  first  collecting  the  learning 
relative  to  challenges,  and  among  the  general  rules  laid  down 
by  him  is  this:  (Coke's  Inst.,  p.  158,  a)  "He  that  hath 
divers  challenges  must  take  them  all  at  once,  and  the  law  so 
requireth  indifferent  trials  as  divers  challenges  are  not  ac- 
counted double."  Upon  his  authority  the  same  rule  is  repeated 
in  Bacon's  Abridgment  Title  Juries  (E.)  11;  Burns'  Justice, 
Title  Jurors  JV*.  Ill;  Joy  on  Confessions,  Law  Library,  vol.  24,  p. 
223;  Trials  perpais,  vol.  1,  p.  197;  and  by  Chitty,  in  his  work 
on  Criminal  Law,  vol.  1,  5th  Jim.  Ed.  p.  545.  Upon  the  same 
authority  the  rule  is  stated,  "  If  there  be  several  objections  to  the 
same  juror  they  must  be  all  suggested  at  the  same  time."  In 
Tnals  per  pais,  vol.  1,  p.  200,  it  is  said,  "  If  one  challenge  a 
juror  and  it  be  found  against  the  challenger,  he  may  not  chal- 
lenge the  juror  for  a  second  cause.  For  this  no  authority  is  cited, 
and  it  probably  is  only  the  author's  deduction  from  the  general 
rule  laid  down  by  Coke.  In  Hale's  Pleas  of  the  Crown  (vol.  2,  p 
274,  1st  Jim.  Ed.),  it  is  stated,  "  When  a  prisoner  challengeth 
for  cause,  he  ought  to  show  his  cause  presently,  because  it  is 
the  king's  suit,  but  some  books  are  that  he  shall  not  show  cause 
till  the  panel  be  perused;  but  he  must  show  all  his  causes 
together.  (Per  24  Eliz.,  C.  B.  Brac/cett's  case.)  This  case  I 
have  not  been  able  to  find. 

The  general  rule  thus  laid  down  by  Lord  Coke,  it  is  obvious 
from  other  portions  of  his  note  on  challenges,  is  not  correct  to 
the  full  extent  which  its  terms  import. 

Challenges  are  divided  by  him  into  challenges  to  the  array 
and  challenges  to  the  polls. 


NEW  YORK,  DECEMBER,  1851. 


270 


Carnal  v.  The  People. 


Challenges  to  the  array  are  subdivided  into  challenges  for 
principal  cause  and  challenges  to  the  favor.     (Coke's  Com.  p. 

156,  a.) 

Challenges  to  the  polls  are  said  to  be  of  four  kinds;  per- 
emptory, principal,  which  induce  favor,  and  for  default  of 
hundredors;  the  latter  now  obsolete.  (P.  156,  6.) 

Peremptory,  without  showing  any  cause.  Principal,  so 
called  because  if  it  be  found  true  it  standeth  sufficient. of  itself, 
without  leaving  any  thing  to  the  conscience  or  discretion  of 
triors.  These  principal  challenges  are  again  classified  under 
four  heads:  propter  honoris  respectum,  propter  defectum,  prop- 
ter  affectum,  propter  delictum;  and  in  treating  of  challenges 
propter  affectum,  they  are  stated  to  be  again  subdivided 
into  principal  challenges  and  challenges  to  the  favor  (p. 

157,  a.),  which    would    seem    to    confine    challenges    to    the 
favor  to  challenges  included  in  the  subdivision  propter  affec- 
tum.    But  there  appears  to  be  some  confusion  in  Lord  Coke's 
classifications    in    first    stating    in   his  classification    of  chal- 
lenges that  there  are  four  kinds,  viz.:  among  others,  principal 
and  for  default  of  hundredors,  and  afterwards  subdividing  prin- 
cipal challenge  into  four  heads  and  among  others  a  challenge 
propter  dejectum.     He  includes  under  this  latter  head  a  chal- 
lenge for  want  of  hundredors,  which  he  at  first  classified  sepa- 
rately; and  so  in  respect   to  challenges  which  induce  fovor, 
first  stating  them  as  a  separate  class  of  challenges  distinct  from 
principal  challenges,  and  afterwards  including  them  under  one 
head  of  principal  challenges,  he  again  treats  of  them  as  a  dis- 
tinct class  (p.  157,  6),  as  challenges  concluding  to  the  favor, 
where  either  party  can  not  take  any  principal  challenge,  but 
showeth  causes  of  favor  which  must  be  left  to  the  conscience 
and  discretion  of  the  triors,  upon  hearing  their  evidence  to  find 
him  favorable  or  not  favorable. 

It  thus  seems  that  the  correct  classification  of  all  challenges 
to  the  polls  is,  first,  into  challenge  for  principal  cause,  which,  if 
found  true,  standeth  sufficient  of  itself  without  leaving  any  thing 
to  the  conscience  or  discretion  of  the  triors.  Second,  challen- 
ges concluding  to  the  favor,  when  either  party  can  not  take 


276  DECISIONS  IX  CRIMINAL  CASES. 

Carnal  v.  The  People. 

any  principal  challenge  but  showeth  causes  of  favor,  which 
must  be  left  to  the  conscience  and  discretion  of  the  triors  to 
find  the  juror  favorable  or  not  favorable.  And  third  peremp- 
tory without  any  cause  assigned. 

And  thus  challenges  to  the  array  and  to  the  polls,  so  far  as  they 
are  challenges  for  cause,  admit  of  the  same  classification  into 
principal  challenges  and  challenges  to  the  favor;  the  challenge 
to  the  array  being  in  respect  to  some  matter  affecting  the  offi- 
cer returning  the  panel  of  jurors,  the  challenge  to  the  polls 
being  in  respect  to  some  matter  affecting  the  jurors  individually. 

The  general  rule  first  stated  that  divers  challenges  must  be 
taken  together  is  then  first  qualified  by  the  rule  laid  down 
by  the  same  authors  that  after  challenge  to  the  array  disal- 
lowed a  challenge  to  the  polls  may  be  taken. 

It  is  further  qualified  by  the  mode  in  which  challenges  are  to 
be  stated  and  to  be  tried. 

It  is  stated  in  Joy  on  Confessions  (vol.  24,  Law  Library,  p. 
^2S),  that  when  a  challenge  is  made,  the  adverse  party  may 
either  demur  (which  brings  into  consideration  the  legal  validity 
of  the  matter  of  challenge),  or  counterplead  by  setting  up  some 
new  matter  consistent  with  the  matter  of  challenge  to  vacate 
and  annul  it  as  a  ground  of  challenge,  or  he  may  deny  what  is 
alleged  for  matter  of  challenge  and  it  is  then  and  there  only 
that  triors  are  to  be  appointed. 

It  seems  to  me  probable  that  in  early  times  the  court,  upon 
the  established  distinction  that  to  them  belongs  the  decision  of 
questions  of  law,  and  to  the  jury  the  decision  of  questions  of 
fact,  would  only  have  decided  upon  challenges  when  by  de- 
murrer the  facts  stated  as  cause  of  challenge  was  admitted  to 
be  true,  and  their  sufficiency  to  exclude  the  array  or  the  juror 
alone  disputed;  but  it  appears  now  to  be  established  that  the 
court  may  pass  upon  a  challenge  for  principal  cause,  as  well 
upon  questions  of  fact  as  of  law,  and  that  triors  are  only  neces- 
sary upon  challenges  to  the  favor.  ( 1  Chitty's  Crim.  Law,  5th 
Jim.  Ed.  p.  549.) 

If,  therefore,  challenges  to  the  favor  can  not  be  interposed 
•when,  upon  challenge  for  principal  cause,  the  juror  has  been 


NEW  YORK,  DECEMBER,  1S51.  277 

Carnal  t>.  The  People. 

found  indifferent,  the  party  challenging  is  deprived  of  a  Isenefit 
conferred  by  law  that  triors  should  pass  upon  the  question  of 
the  unindifferency  of  the  juror,  and  is  compelled  to  submit  to 
the  decision  of  the  court,  which,  without  his  assent^  is  not  the 
tribunal  to  determine  challenges  to  the  favor.  In  fact,  different 
questions  arise  under  the  two  challenges;  if  principal  cause  is 
shown,  the  juror  must  be  set  aside,  and  if  allowed  to  serve,  it 
would  be  error  which  would  appear  upon  the  record,  and  even 
before  the  introduction  of  bills  of  exceptions  in  criminal  cases, 
would  have  furnished  grounds  for  reversing  the  judgment;  but 
the  challenge  to  the  favor  is  to  be  determined  by  the  conscience 
and  discretion  of  the  triors  alone  and  from  their  finding  there 
is  no  appeal. 

Again,  it  is  stated  in  Jacob's  Law  Dictionary  by  Tomlins 
(  Title  Jury,  II,  p.  579,  vol.  3,  1st  Jim.  Ed. ),  that,  "  if  one  take 
a  principal  challenge  against  a  juror,  he  can  not  afterwards 
challenge  that  juror  for  favor  and  waive  Jiis  former  challenge, 
but  a  challenge  may  be  made  to  the  polls  after  it  has  been 
made  to  the  array,  citing  Wood,  592.  If  the  work  intended  be 
Wood's  Institutes  of  the  Laws  of  England,  I  have  not  been 
able  to  find  in  it  the  position  which  it  is  cited  to  sustain,  and 
which,  if  founded  on  authority,  would  go  far  to  support  the 
rule  that  all  challenges  for  cause  must  be  taken  together  and 
decided  by  one  trial. 

But  there  are  authorities  to  the  contrary. 

In  Trials  per  pais  (vol.  1  p.  189),  it  is  said  if  a  man  chal- 
lenge a  juror  for  nonsufficiency  of  freehold,  and  this  is  adjudged 
against  him,  yet  he  may  challenge  for  favor  and  this  shall  be 
tried,  citing  10  H.  6,  18;  Roll.  Trial,  658,  pi.  3.  Thus  sus- 
taining a  challenge  to  the  polls  for  favor  after  an  adverse 
decision  on  a  challenge  for  principal  cause. 

In  Uoare  v.  Brown  (Cro.  Eliz.p.  369),  in  an  action  of  replevin 
a  defendant  would  have  challenged  the  array  ore  tenus,  because 
it  was  returned  by  one  Stouner,  sheriff,  after  he  had  received  a 
writ  of  discharge;  and  it  .vas  held  by  the  court  that  he  could 
not  challenge  it  for  that  cause  because  it  would  be  a  direct 
averment  against  the  record,  for  it  is  returned  by  him  as  sheriff 


278  DECISIONS  IN  CRLMINAL  CASES. 

Carnal  v.  The  People. 

and  the  return  accepted.  But  by  advice  of  the  court  he  made 
his  challenge  to  the  array  because  it  was  favorably  made  and 
returned  in  favor  of  the  party,  &c.,  and  issue  being  joined  there- 
upon and  all  this  matter  given  in  evidence,  the  court  directed 
the  triors  that  it  was  not  duly  made  and  returned,  for  it  was 
without  warrant,  whereupon  the  array  was  quafjhed.  Thus  sus- 
sustaining  a  challenge  to  the  array  for  favor  after  a  challenge 
for  principal  cause  allowed. 

I  have  thus  endeavored  from  a  careful  examination  of  Coke's 
Institutes  and  Trials  per  pais,  works  usually  cited  as  authorities 
on  the  subject  of  challenges  to  jurors,  to  ascertain  if  the  rule 
that  divers  causes  of  challenge  must  be  taken  together  can  be 
held  to  exclude  a  challenge  to  the  favor  after  a  challenge  for 
principal  cause  disallowed,  and  feel  satisfied  that  such  is  not 
the  meaning  of  the  rule  but  that  it  only  means  that  all  causes 
of  principal  challenge  must  be  taken  together  and  be  tried  at 
the  same  time,  and  if  disallowed  a  challenge  to  the  favor  may 
be  interposed;  but  that  all  causes  for  this  latter  challenge  must 
be  assigned  together  and  tried  at  the  same  time;  at  least,  that 
after  one  trial  no  fresh  cause  of  challenge  to  the  favor  can  be 
urged,  unless  arising  subsequently  to  trial. 

In  this  state,  the  authorities  appear  fully  to  sustain  the  con- 
clusion thus  arrived  at.  I  have  carefully  searched  the  reports 
for  cases  on  the  subject,  and  in  support  of  the  first  proposition, 
that  the  prisoner  has  a  legal  right  to  challenge  to  the  favor 
after  a  challenge  for  principal  cause  has  been  decided  against 
him,  refer  to  the  following  instances  where  such  challenges  have 
been  taken  without  objection: 

In  The  People  v.  Freeman  (4  Denio,  p.  9),  Beach,  a  juror,  was 
challenged  for  principal  cause,  and  the  challenge  was  overruled. 
He  was  then  challenged  to  the  favor,  triors  were  appointed, 
the  judge  charged  them,  they  found  the  juror  indifferent,  he  was 
sworn,  and  Ihe  prisoner  was  found  guilty.  The  supreme  court 
reversed  the  judgment,  for,  among  other  errors,  an  error  com- 
mitted by  the  judge,  in  charging  the  triors.  If  the  prisoner 
had  not  the  legal  right  to  challenge  to  the  favor  after  a  chal- 
lenge for  principal  cause  disallowed,  however  erroneous  *he 


NEW  YORK,  DECEMBER,    18-31.  379 

Carnal  v.  The  People. 

judge's  charge  might  have  been,  no  error  would  have  been 
committed  which  could  be  reviewed  in  the  court  above. 

In  the  People  v.  Honeyman  (3  Denio,  p.  121),  Roberts,  a  ju- 
juror,  was  challenged  for  principal  cause;  the  challenge  was 
denied  and  tried  by  the  court  and  disallowed.  The  same  juror 
was  then  challenged  to  the  favor,  and  the  triors  found  him 
indifferent  and  he  was  sworn. 

In  the  supreme  court  no  comment  was  made  upon  the  fact 
that  challenge  to  the  favor  had  been  taken  after  challenge. for 
principal  cause. 

In  The  People  v.  Mather  (4  Wendell,  229),  Samuel  Clark 
was  challenged  for  principal  cause,  and  the  challenge  was 
overruled;  he  was  then  challenged  to  the  favor,  and  the  triors 
found  the  juror  not  indifferent.  These  separate  challenges  are 
not  commented  upon  as  improper  by  the  supreme  court.  These 
cases,  strongly  contested  as  they  were,  furnish  some  evidence 
that  the  general  opinion  both  of  the  bench  and  the  bar  has 
been,  that  the  same  juror  might  be  challenged  to  the  favor 
after  a  challenge  to  him  for  principal  cause  had  been  allowed. 
I  have  entertained  much  more  doubt  on  the  other  question  pre- 
sented by  the  exception  in  this  case,  whether  the  judge,  what- 
ever were  his  reasons,  erred  in  refusing  to  receive  the  challenge 
to  the  favor  as  it  appears  upon  the  record,  without  cause  as- 
signed. The  challenge  to  the  favor  is  a  challenge  for  cause, 
and  if  no  cause  is  assigned,  according  to  the  doctrine,  though 
not  the  practice,  in  the  case  of  The  People  v.  Freeman  (4  Denio, 
p.  9),  the  challenge  need  not  be  received.  The  reported  cases 
in  this  state  do  not,  however,  that  I  have  been  able  to  discover, 
disclose  an  instance  where  the  general  form  of  the  challenge 
has  been  objected  to;  thus,  in  The  People  v.  Lohman  (2  Barb' 
up.  Ct.  Rep.  p.  216),  a  juror  was  challenged  to  the  favor,  it 
does  not  appear  from  the  record  that  any  cause  was  assigned  or 
that  the  omission  was  objected  to  in  the  Oyer  or  Terminer  or 
in  the  supreme  court,  or  in  the  court  of  appeals,  in  the  report 
of  the  same  case.  (1  Comstock  Rep.  p.  280.)  In  Freeman's  case, 
cited  before,  (4  Denio,  p.  9)  Beach  was  challenged  to  the  favor; 
no  cause  was  assigned,  and  Judge  Beardsley,  though  he  lays 


230  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  v.  The  People. 

down  the  rule  that  a  challenge  without  cause  assigned  may  be 
disregarded,  practically  violates  the  rule  by  reviewing  the 
judge's  charge  to  triors  on  such  a  challenge  without  cause  as- 
signed. In  The  People  v.  Honeyman  (3  Denio,  p.  121),  the 
juror  was  challenged  for  favor,  on  the  ground  of  bias  against 
the  prisoner,  a  cause  of  challenge  not  more  specific  than  the 
challenge  itself.  In  The  People  v.  Bodine(l  Denio,  281),  Coon 
and  M'Colgan  were  challengedybryavor;  no  cause  of  challenge 
assigned,  and  the  omission  was  not  objected  to.  In  14  Wend. 
13 1,  (Rogers  v.  Rogers)  a  juror  was  challenged  as  not  indifferent; 
no  other  cause  assigned  and  no  objection  to  the  omission.  In 
The  Prople  v.  Mather  (4  Wend.  229),  Samuel  Clark  was  chal- 
lenged to  the  favor;  no  cause  was  assigned,  and  no  ob  ection  to 
the  omission.  In  The  Mechanics''  and  Farmers'  Bank  v.  Smith  (19 
Johns.  Rep.  p  115),  the  juror  was  challenged  to  the  favor;  no 
cause  was  assigned,  and  no  objection  made  to  the  omission.  In 
The  People  v.  Thorn,  N.  Y.  General  Sessions,  June,  1819,  before 
Cadwallader  D.  Golden,  mayor,  P.  A.  Jay,  recorder  (4  City 
Hall  Recorder,  p.  81),  the  juror  was  challenged  to  the  favor 
and  his  relationship  to  one  of  the  parties  inquired  into,  and  the 
evidence  not  sustaining  the  intended  objection,  it  was  offered  to 
prove  other  facts  to  sustain  the  challenge  Emmet  contended 
that  the  party  must  be  confined  to  the  matter  first  inquired  into 
and  should  not  be  indulged  in  a  fishing  voyage.  Golden  decid- 
ed, that  upon  a  challenge  to  the  favor,  it  was  not  necessary  to 
specify  the  cause  previous  to  trial;  that  a  logical  precision  in 
assigning  cause  in  this  species  of  challenge  would  in  general 
not  be  practicable,  and  in  the  opinion  of  the  court  would  be 
unnecessary. 

It  would  seem,  from  these  cases,  that  in  the  opinion  of  the 
bench  and  bar,  it  has  been  sufficient  merely  to  challenge  to  the 
favor  without  further  or  other  cause  assigned.  Vide  also  1 
Chitty's  Criminal  Law,  5  Jim.  ed.  p.  547:  "  The  mode  of  chal- 
lenging." 

In  Lord  Coke's  language,  the  juror  must  stand  indifferent  as 
ne  stands  unsworn;  and  to  effect  this  object,  full  libertv  appears 
to  have  been  given  in  modern  times  to  an  examination  of  the 


NEW  YORK.  DECEMBER    1851. 


Carnal  v.  The  People. 


condition  of  the  juror's  mind  and  feelings  [the  distinctions  be- 
tween opinions  and  impressions,  &c.,  &c.,  be  ng  more  meta- 
physical often  than  I  am  able  to  understand]  ;  but  at  all  events, 
an  opportunity  is  to  be  afforded  to  ascertain  something  of  the 
juror's  opinions  before  trusting  him  with  the  life  of  the  prisoner; 
an  opportunity  not  likely  to  be  abandoned  in  this  large  city 
at  least,  where  counsel,  prisoner  and  juror  meet  often  for  the 
first  time  in  the  court  room;  the  juror  acquainted  with  many  of 
the  details  of  the  accusation  against  the  prisoner  from  the  pub- 
lic press,  and  the  prisoner  unable,  save  from  the  juror  himself, 
to  asceitain  how  far  that  acquaintance  has  disqualified  the  juror 
for  giving  him  an  impartial  trial. 

My  conclusion,  therefore,  upon  the  whole  case  is,  1.  That  af- 
ter a  juror  has  been  challenged  for  principal  cause,  and  the  chal- 
lenge tried  and  disallowed,  he  may  be  challenged  to  the  favor, 
and  that  the  judge  below  erred  in  holding  otherwise.  2.  That 
it  is  sufficient  to  challenge  to  the  favor  without  assigning  other 
cause  than  the  words  of  the  challenge  import,  and  therefore 
that  the  judge  should,  upon  such  challenge,  have  appointed 
triors  and  that  his  refusal  to  entertain  the  challenge  was  error 
for  which,  upon  a  bill  of  exceptions,  the  judgment  must  be  re- 
versed, and  a  venire  de  novo  awarded. 

The  prisoner  has  been  convicted  of  an  atrocious  crime,  and 
it  is  to  be  regretted  that  the  decision  of  this  court  may  enable 
him  to  escape  the  punishment  which  the  law  affixes  to  his  of 
fence.  But  the  rule  of  law  can  not  be  varied  to  suit  particular 
cases;  it  must,  in  a  country  of  laws,  be  universal  in  its  appli- 
cation. 

It  is  needless  to  consider  the  other  questions  presented  by  the 
bill  of  exceptions. 

The  judgment  pronounced  by  the  Oyer  and  Terminer  should 
be  reversed,  and  a  new  trial  ordered  in  the  court  of  Oyer  and 
Terminer,  and  the  prisoner  be  remanded  to  the  custody  of  the 
sheriff  to  await  such  new  trial,  on  the  indictment  against,  him. 

MITCHELL,  J.  —  At  the  Oyer  and  Terminer  in  this  city,  Carnal 
was  found  guilty  of  murder.    He  has  brought  a  writ  of  error  to 
VOL.  I.  36 


282  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  r.  The  People. 

this  court,  and  the  exceptions  taken  by  his  counsel  to  the  rulings 
of  the  court  below  have  been  argued.  The  bill  of  exceptions 
states  that  after  several  jurors  had  been  called  and  challenged 
to  the  favor  on  the  part  of  the  prisonei  and  set  aside,  Charles 
Mason  was  called,  and  was  challenged  for  principal  cause  on 
the  part  of  the  prisoner,  and  the  challenge  denied  by  the  coun- 
sel for  the  people;  the  said  Charles  Mason  having  been  sworn 
to  testify  the  truth  as  to  his  competency  to  serve  as  a  juror, 
testified  that  he  had  not  formed  or  expressed  any  opinion  as  to 
the  guilt  or  innocence  of  the  accused,  whereupon  the  challenge 
for  principal  cause  was  overruled,  and  the  counsel  for  the  pri- 
soner then  challenged  said  person  for  favor,  but  the  court 
thereupon  decided  that  the  juror  having  been  challenged  for 
principal  cause,  and  on  such  challenge  examined  as  to  his 
indiiferency,  and  said  cause  of  challenge  having  been  heard 
and  decided  and  the  juror  found  indifferent,  it  was  too  late  tc 
interpose  a  challenge  to  the  favor;  to  which  decision  the  coun- 
sel for  the  prisoner  then  and  there  duly  excepted,  and  that  said 
person  was  then  sworn  as  a  juror  to  try  the  cause. 

It  is  first  objected  by  the  district  attorney  that  no  cause  of 
challenge  to  the  favor  was  specified,  and  that  the  challenge  was 
therefore  a  nullity.  Such  seems  to  have  been  deemed  the  rule, 
if  the  court  below  choose  to  insist  on  such  a  rule,  and  to  re- 
quire the  facts  to  be  stated.  But  the  practice  has  been  different, 
and  it  has  almost  invariably  been  allowed  in  this  city  to  the 
challenge  first  to  interrogate  the  juror  and  get  the  facts  from 
him,  and  then  to  argue  on  the  evidence,  as  it  may  thus  appear, 
whether  he  is  admissible  or  not.  And  in  conformity  with  this 
practice  it  is  a  frequent  thing  for  the  court  to  prescribe  certain 
questions  to  be  put  to  every  juror,  which  he  is  to  answer,  and 
no  specific  cause  of  challenge  is  stated  until  these  answers  are 
given.  Such  is  the  course  adopted  in  the  United  States  courts 
in  Philadelphia  on  the  trials  for  alleged  treason,  now  pending, 
and  such  also  was  the  course  of  another  branch  of  that  court  in 
Boston,  within  a  few  months,  on  similar  trials.  The  same  usage 
probably  prevails  throughout  the  state.  Such  being  the  case, 
it  would  be  a  surprise  on  counsel  to  allow  them  to  proceed  on 


NEW  YORK,  DECEMBER,  1851. 


Carnal  v.  The  People. 


the  trial  as  if  the  usual  waiver  of  a  form  was  to  be  allowed,  ami 
to  make  no  objection  to  the  omission  in  the  court  below,  and 
then  for  the  first  time  raise  the  objection  in  the  appellate  court. 

In  this  case,  before  this  juror  was  called,  several  other  jurors 
(as  the  bill  of  exceptions  stated),  had  been  called  and  challenged 
to  the  favor  on  the  part  of  the  prisoner  and  set  aside.  Beyond 
any  doubt  they  were  challenged  in  the  usual  way  without  as- 
signing any  cause  until  their  examination  had  disclosed  their 
incompetency.  It  would  then  be  a  fraud  on  the  prisoner  to 
allow  the  trial  to  commence  in  such  way  as  to  lead  his  counsel 
to  believe  that  the  formality  of  assigning  specific  causes  was  to 
be  waived,  and  afterwards,  without  insisting  on  this  formality 
in  the  court  below,  when  this  defect  could  be  immediately 
cured,  to  make  it  an  objection  for  the  first  time  in  the  appellate 
court,  when  there  would  be  no  opportunity  of  curing  it.  Such 
an  injustice  would  be  entirely  contrary  to  the  intention,  as  it 
would  be  to  the  lenient  character  of  the  judge  who  presided  at 
the  Oyer  and  Terminer.  In  this  case  the  counsel  for  the  pri- 
soner challenged  to  the  favor,  and  "  the  court  f  hereupon  decided" 
that  such  challenge  could  not  be  allowed.  This  was  a  declara- 
tion to  the  counsel  that  however  formally  they  might  put 
their  challenge,  or  whatever  might  be  the  cause  which  they 
might  allege,  it  wrould  be  disallowed.  Counsel  after  that  de- 
cision could  not  with  propriety  insist  that  they  should  be 
allowed  to  state  the  cause  of  challenge.  Probably,  as  the  bill 
of  exceptions  indicates,  the  counsel  challenged  to  the  favor, 
and  the  court  thereupon  or  immediately  on  that  challenge  being 
put,  stated  the  objection  to  it,  and  decided  that  it  could  not  be 
made. 

Besides  this,  there  is  no  need  in  a  bill  of  exceptions  of  stat- 
ing more  facts  than  are  necessary  to  show  the  applicability  of 
the  point  of  law  excepted  toj  that  was  the  simple  question, 
whether  after  a  challenge  for  principal  cause  has  been  over- 
ruled, a  challenge  to  the  favor  can  be  allowed.  That  was  the 
precise  point  decided,  and  the  precise  point  excepted  to.  All 
the  facts  that  are  necessary  to  present  that  point  are,  that  there 
was  a  challenge  for  principal  cause,  and  that  it  was  overruled, 


234  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  v.  The  People. 

and  that  then  a  challenge  to  the  favor  was  made.  For  the  pur- 
pose of  examining  the  point  decided  and  excepted  to,  it  is 
entirely  unnecessary  to  know  what  the  causes  assigned  for  the 
principal  challenge  were,  or  what  those  assigned  for  favor  were, 
and  they  may  therefore  have  been  omitted  in  the  bill  of  excep- 
tions as  unnecessary,  and  yet  have  been  stated  in  the  court 
below.  A  fair  interpretation  of  the  bill  of  exceptions  would 
lead  to  a  like  conclusion.  It  states  that  several  jurors  were 
called  and  challenged  to  the  favor;  this  means  that  they  were 
duly  challenged.  It  states  that  Mason  was  challenged  for  prin- 
cipal cause;  that  also  certainly  means  that  he  was  duly  chal- 
lenged; and  after  that  it  states  he  was  challenged  for  fevor; 
again,  also,  it  can  mean  nothing  else  than  that  he  was  duly 
challenged.  In  any  view  of  the  case,  therefore,  we  are  com- 
pelled to  decide  the  direct  question  passed  on  by  the  presiding 
judge  of  the  Oyer  and  Terminer,  and  which  we  know  he  wishes 
should  not  be  avoided,  and  which  especially  in  a  case  of  life 
or  death  should  not  be  avoided. 

It  has  been  before  stated  that  it  has  been  declared  that  the 
court  may  require  the  facts  constituting  the  cause  of  challenge 
to  be  stated.  If  this  means  anything  more  than  that  the  facts,  as 
contradistinguished  from  the  evidence  of  facts,  may  be  required, 
it  is  believed  that  it  would  be  impracticable  in  operation.  In 
pleadings  at  common  law,  facts  are  to  be  so  stated  that,  from 
the  statement  made,  the  court  may  draw  a  conclusion  as  a  con- 
clusion of  law.  To  require  therefore  a  challenge  for  principal 
cause  to  state  the  fact  is  analogical  and  reasonable,  for  then  the 
court  is  to  determine,  as  a  question  of  law  and  not  of  fact,  whe- 
ther the  challenge  is  good  or  not.  But  challenges  to  the  favor 
do  not  rest  on  facts,  from  which  the  court  can  raise  any  inference 
of  law,  but  on  circumstances  having  the  least  tendency  to  make 
it  probable  that  the  juror  may  be  under  any  bias,  and  which  the 
triors  are  then  to  pass  on,  not  as  matter  of  law,  but  of  fact. 
Thus  a  hypothetical  opinion  expressed  by  a  juror,  or  his  obtain- 
ing a  discount  at  a  bank  which  is  a  party  to  the  suit,  or  being 
a  fellow  servant  with  a  party  to  the  suit,  may  be  submitted  to 
the  triors,  and  they  may  find  either  way,  and  the  court  will  not 


NEW  YORK,  DECEMBER,  1831.  2S5 


Carr.al  v.  The  People. 


interfere  with  their  finding.  Either  of  these  circumstances  may 
have  others  connected  with  it  which  may  be  proved  in  evidence, 
and  may  determine  the  result  one  way  or  the  order,  which  yet 
it  would  hardly  be  proper  or  practicable  to  require  to  be  stated 
as  specific  causes  of  challenge.  Many  of  them,  too,  can  only 
be  ascertained  (as  is  almost  invariably  the  case)  by  the  exami- 
nation of  the  juror  and  the  disclosures  so  made  by  him.  If  the 
object  be  to  obtain  an  impartial  jury,  no  restriction  that  would 
forbid  the  examination  of  the  juror,  until  the  specific  cause  of 
challenge  should  be  stated,  should  be  allowed. 

The  strict  rule  is  laid  down  and  carried  out  in  Mann  v.  Glenn, 
in  2  Green's  Rep.  192  (New  Jersey).  But  in  our  courts  the 
correctness  of  the  judge's  decision  in  the  court  below  has  been 
uniformly  inquired  into,  although  no  specific  cause  of  challenge 
was  stated.  In  6  Cow.  555,  558,  in  ex  parte  Vermilyea,  Judge 
Woodworth  says,  "  The  most  regular  course  would  be  to  have 
stated  in  the  first  instance  the  facts  relied  on  for  cause.  It 
seems,  however,  that  the  juror  was  challenged  without  specify 
ing  the  cause,  and  the  question  referred  to  the  court."  This, 
too,  was  a  challenge  for  principal  cause,  yet  the  court  examined 
into  the  propriety  of  the  decision  and  ordered  a  new  trial. 

In  The  People  v.  Freeman  (4  Denio,  9),  the  court  say  (p.  31), 
"When  a  juror  is  challenged  for  principal  cause,  or  for  favor, 
the  grounds  of  the  challenge  should  be  distinctly  stated,  for 
without  this  the  challenge  is  incomplete,  and  may  be  (not  must 
be)  "  wholly  disregarded  by  the  court.  This  points  out  a  rule 
which  it  is  intended  should  be  followed,  but  the  court  proceeds 
in  the  next  page  to  show  "  that  challenges  are  not  unfrequently 
made  in  general  terms,  which  merely  indicate  the  supposed  cha- 
racter of  the  challenge,  as  for  principal  cause,  or  for  favor," 
and  so  lenient  were  the  court  then,  that  although  the  bill  of 
exceptions  only  stated  that  the  juror  was  challenged  for  prin- 
cipal cause,  they  inferred  that  cause  was  alleged  corresponding 
with  the  evidence  from  the  fact  that  evidence  was  given  (p 
33).  On  the  same  principle  it  may  be  inferred  here  that  cause 
was  alleged  from  the  decision  of  the  judge,  or  that  he  waived 


236  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  v.  The  People. 

the  allegation  of  any  cause  and  rested  his  decision  on  a  point 
which  would  have  made  the  allegation  unnecessary  and  imper- 
tinent 

This  brings  us  to  the  question —  is  it  too  late  to  interpose  a 
challenge  to  the  favor  after  a  juror  has  been  challenged  for 
principal  cause  and  the  challenge  overruled  by  the  court? 

General  expressions  will  be  found  in  elementary  works 
which  seem  to  hold  the  affirmative.  Thus  it  is  said  in  Vin, 
Jtbr. (Trials  L.  D.  pi.  20),  "  He  that  has  divers  challenges  must 
take  them  all  at  once  and  the  law  so  requires  indifferent  trials, 
that  divers  challenges  are  not  accounted  double,"  quoting  Co. 
Litt.  158,  a.  The  same  thing  is  said,  probably  on  the  same 
authority,  in  the  same  words,  in  Trials  per  Pais  (Ed.  1766,  p. 
J97),  and  in  similar,  though  not  the  same  language  in  1  Chitty 
Cr.  Law,  545,  and  also  in  Joy  on  Con.  They  do  not,  however, 
refer  to  any  case  which  would  illustrate  their  meaning.  They 
do,  however,  indirectly  show  what  is  intended  by  them.  The 
words  used  are  broad  enough  to  require  the  party  to  take  his 
challenge  to  the  array  and  to  the  polls  at  the  same  time,  for 
they  are, "  he  that  has  divers  challenges  must  taken  them  all  at 
once,"  He  who  has  a  challenge  to  the  array  and  to  the  polls 
has  divers  challenges,  yet  he  can  not  take  them  both  at  once, 
but  mu$t  first  challenge  the  array,  and  then  the  polls.  The 
words  also  would  include  peremptory  challenges;  yet  after  a 
challenge  to  the  polls  is  taken  and  found  against  the  party  he 
may  peremptorily  challenge  the  juror  thus  admitted.  The  rule 
therefore,  is  subject  to  qualification,  and  its  qualification  is 
shadowed  forth  in  the  latter  part  of  it,  when  it  says,  "  divers 
challenges  are  not  accounted  double."  It  is  no  objection  that 
more  than  one  sufficient  cause  of  challenge  is  stated;  that 
is  not  accounted  double  pleading.  But  if  one  should  challenge 
for  principal  cause,  and  then  set  forth  one  sufficient  principal 
cause,  as  that  the  juror  was  under  lawful  age,  and  added  any 
number  of  good  causes  of  challenge  to  the  favor,  that  could  be 
imagined,  the  last  would  hardly  be  subject  to  the  Objection  of 
being  double,  for  they  would  constitute  no  cause  of  objection  to 


NEW  YORK,  DECEMBER,  1851.  287 


Carnal  v.  The  People 


the  juror  on  the  only  question  before  the  court,  which  would  be 
whether  the  challenge  for  principal  cause  was  sustained.  These 
certainly  would  not  sustain  that  issue. 

If  then  two  classes  of  objection  were  united,  the  court  would 
be  without  the  power  of  passing  on  those  to  the  favor.  It 
could  not  say  whether  they  were  sufficient  challenges  to  the 
favor  or  not  —  for  that  is  a  question  of  fact  for  the  triors  to 
decide,  and  not  of  law  for  a  court  to  decide.  Certainly  there 
is  no  rule  of  law  requiring  a  party  to  present  an  objection  to  a 
tribunal  which  can  not  pass  on  it. 

The  rule  therefore  intended  by  these  elementary  books  must 
bo,  that  "  a  party  must  prefer  all  his  challenges  of  the  same 
nature  and  triable  by  the  same  forum,  at  once.  (Ch.  J.  Hornblower 
in  Mann  v.  Glover,  2  Green,  196,  202.) 

The  party  must  show  whether  his  challenge  is  for  principal 
cause  or  for  favor,  that  the  court  may  know  whether  it  is  to 
pass  on  the  question,  or  submit  it  to  triors.  He  may  have  rea- 
son to  believe  that  he  has  both  grounds  of  objection  —  he  should 
not  lose  either,  as  "the  law  (in  the  words  of  the  rule)  so 
requireth  indifferent  trials."  To  obtain  the  benefit  of  both,  he 
must  be  allowed  to  present  each  to  the  tribunal  appointed  by 
law  to  pass  on  it  —  the  matter  of  principal  cause  to  the  court, 
and  if  that  be  found  against  him,  then  the  matter  for  favor 
which  the  court  could  not  have  passed  upon  (or  which  if  it  had 
been  alleged  as  principal  cause,  it  must  have  been  overruled 
as  not  of  that  character),  to  the  triors  appointed  by  law,  or,  if 
the  parties  choose,  to  the  judge  to  determine,  not  as  a  princi- 
pal cause  but  as  to  the  favor. 

A  challenge  might  be  taken  as  for  principal  cause,  the 
evidence  might  show  that  it  was  not  of  that  character,  but  that 
it  clearly  was  sufficient  to  be  submitted  to  triors.  The  judge 
would  be  bound  to  overrule  it,  because  it  did  not  amount  to  a 
principal  cause,  but  for  that  reason  must  the  juror,  whom  the 
triors  would  probably  reject,  be  admitted?  All  that  the  judge 
would  have  decided  would  be  that  the  principal  cause  was  not 
sustained,  he  would  not  have  passed  on  the  question  whether 
the  juror  might  not  still  be  biassed,  or  whether  triors  might  not 


283  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  v.  The  People. 

be  justified  in  excluding  him.  Tf  the  question  therefore,  wcs 
submitted  to  triors  on  the  same  evidence,  it  would  not  be  on 
appeal  from  the  judge  to  them.  The  judge  might  well  say  to 
them,  that  he  was  right  in  his  decision,  and  yet  that  they 
might  probably  exclude  the  juror.  Thus  if,  as  in  the  case  of 
The  People  v.  Mather  (4  Wend.  235),  a  juror  should  testify  that 
he  was  a  partner  of  the  defendant's  brother,  that  his  partner 
was  rich,  and  he  poor,  he  contributing  only  his  labor  to  the 
firm,  that  he  resided  with  his  partner,  that  he  had  read  news- 
paper accounts  of  a  similar  trial,  but  had  no  fixed  opinion  of 
the  guilt  or  innocence  of  the  defendant  —  the  court  might  be 
bound  to  overrule  a  challenge  for  principal  cause  and  yet  be 
disposed,  if  established  for  the  triors,  to  reject  the  juror  for 
favor.  In  the  one  case  the  decision  is  that  the  law,  under  the 
facts  proved,  holds  the  juror  not  to  be  necessarily  incompetent; 
in  the  other,  that  there  is  such  probable  cause  of  bias  that  he 
ought  to  be  rejected. 

From  the  very  nature  of  the  challenges,  it  might  be  interred 
that  the  one  might  be  allowed  after  the  other  had  been  disal- 
lowed. For  the  challenge  to  the  favor  is  a  supposition  that 
the  bias  or  partiality  to  be  proved  is  not  such  as  would  be 
in  law  a  ground  for  a  principal  challenge.  This  was  fully 
shown  in  the  case  of  The  People  v.  Bodine.  (1  Demo,  281.) 

The  practice  in  our  courts  so  far  as  the  reports  show,  has 
been  in  conformity  with  these  views.  In  The  People  v.  Mather 
(4  Wend.  229,  232,  234),  Clark,  a  juror  was  challenged  for  prin- 
cipal cause,  and  admitted  by  the  judges;  he  was  then  challenged 
for  favor,  and  triors  appointed,  and  was  rejected  by  them.  No 
one  intimated  that  there  was  any  irregularity  in  this;  and  this 
case  is  quoted  by  Ch.  .1.  Hornblower  in  2  Green.  Rep.  205,  as 
showing  that  after  the  court  has  decided  certain  matters  not  to 
be  sufficient  to  sustain  a  principal  challenge,  the  party  may 
submit  the  same  evidence  to  triors  in  support  of  a  challenge  to 
the  favor."  The  same  course  was  taken  without  any  intima- 
tion from  any  question  that  it  was  irregular  in  The  People  v. 
Honeymann  (2  Denio,  122).  Roberts  was  challenged  for  princi- 
pal cause  admitted  by  the  court,  who  rejected  evidence  offered 


NF.W  YORK,  DECEMBER,  1851.  289 

Carnal  t>.  The  People. 

to  show  impressions  made  on  the  juror's  mind  as  not  amounting 
to  principal  cause,  although  proper  on  a  challenge  to  the  favor, 
and  he  was  then  challenged  for  favor  and  the  jurors  also  admit- 
ted him.  In  The  People  v.  Freeman  (4  Denio,  9),  two  jurors 
were  challenged  for  principal  cause  and  admitted  by  the  court 
They  were  then  challenged  for  favor,  and  the  court  charged  the 
triors  as  to  the  law  and  exceptions  were  taken  to  that  charge; 
these  exceptions  were  argued  in  the  supreme  court  and  were 
held  to  have  been  well  taken,  and  on  that  account  partly  a  new 
trial  was  ordered.  If  in  such  a  case  the  prisoner  had  no  right 
to  a  challenge  to  the  favor,  an  error  in  the  charge  of  the  judge 
could  have  done  him  no  harm  in  law;  but  no  such  objection 
was  raised  by  the  attorney  general  or  his  learned  associate  in 
this  case  as  may  be  inferred  from  the  fact  that  none  such  is 
returned  by  the  court  in  an  elaborate  opinion  which  seems  -to 
have  been  intended  to  meet  every  objection.  (See  p.  34  and 
p.  15.) 

The  same  principle  is  also  contained  in  the  elementary  works, 
from  which  the  general  rule  has  been  extracted.  It  is  said  in 
Trials  per  Pais  (p.  189),  "  If  a  man  challenges  a  juror  for  non- 
sufficiency  of  freehold,  and  this  is  adjudged  against  him,  yet  he 
may  challenge  for  favor,  and  this  shall  be  tried."  The  same  is 
also  stated  in  Vin.  Abr.  (Trial,  L.  d.  pi.  3).  This  single  illus- 
tration establishes  the  rule  —  nonsufficiency  of  freehold  is  a 
challenge  for  principal  cause  and  is  to  be  "  adjudged  "  by  the 
court;  but  still  after  this  is  so  adjudged  the  party  may  chal- 
lenge for  favor,  and  this  shall  be  "  fried  "  by  triors  —  another 
forum,  which  could  not  pass  on  the  first  challenge;  as  the  first 
forum,  the  court,  could  not  on  the  last. 

Authority,  the  practice  of  the  court  and  principle  seem  all  to 
concur  in  allowing  the  prisoner  first  to  challenge  for  principal 
cause  and  have  that  "  adjudged,"  by  the  court,  and  then  tc 
challenge  for  favor  and  have  that  "  tried  "  by  triors  —  "  the 
law  so  "  anxiously  '*  requireth  indifferent  trials. 

It  is  perhaps  necessary,  in  order  to  prevent  misapprehension 
in  future  cases  to  notice  the  mode  in  which  the  exceptions  were 
taken  to  the  judge's  charge.  Five  different  propositions  were 

VOL.  L  37 


290  DECISIONS  IN  CRIMINAL  CASES. 

Carnal  t>..The  People 

submitted  by  the  counsel  for  the  prisoner,  and  the  judge  was 
requested  to  charge  accordingly.  After  his  charge  was  given, 
it  is  stated  that  he  refused  to  charge  the  five  propositions,  ex- 
cept as  in  his  charge:  to  which  decision  and  refusal  the  coun- 
sel for  the  prisoner  excepted.  The  judge  had  charged  on  the 
fourth  proposition  substantially  as  requested;  as  to  the  third, 
there  was  not  a  word  of  evidence  to  sustain  it;  the  fifth  was 
such  every  day  doctrine  that  every  juror  knows  it,  and  that  the 
judge  could  not  by  any  possibility  have  refused  to  charge  it  if 
his  attention  had  been  drawn  to  the  fact  that  it  was  one  of  the 
requests,  and  that  he  had  not  stated  it  in  his  charge.  After 
the  charge,  counsel  should  in  fairness  have  pointed  out  to 
the  court  in  what  particulars  the  charge  failed  to  comply  with 
their  request,  and  it  might  have  been  that  they  would  not  have 
been  considered  as  having  placed  their  finger  on  the  point  ex- 
cepted to  with  sufficient  distinctness  to  enable  the  court  to 
perceive  it.  If  an  exception  is  taken  so  indistinctly  that  the 
court  below  could  not  readily  perceive  the  exact  point  of  the 
objection,  the  appellate  court  will  disregard  it. 

The  judgment  should  be  reversed  and  a  new  trial  had  in  tht 
court  of  Oyer  and  Terminer. 

Judgment  of  Oyer  and  Terminer  reversed  and  new  trial  or 
dered 


KINGS.  OCTOBER,  1851.  291 


SUPREME  COURT.    Kings  General  Term,  October,  1851.    Morse, 
Barculo  and  Brown,  Justices. 

THE  PEOPLE  vs.  MICHAEL  JOHNSON. 

Vh«re  on  a  trial  for  murder,  it  appeared  that  the  prisoner  and  the  deceased  had 
been  engaged  in  a  fight  or  scuffle  in  the  public  highway,  and  the  prisoner 
after  knocking  down  the  deceased,  took  from  the  stone  wall  a  large  stone  and, 
with  both  hands,  threw  it  upon  the  head  of  the  deceased  so  as  to  break  in  his 
skull  and  cause  his  death,  and  the  presiding  judge  charged  the  jury  that  if  they 
believed  the  deceased  came  to  his  death  by  a  blow  from  the  stone  thrown 
against  him,  the  case  was  capable  of  being  regarded  as  a  case  of  murder, 
under  the  second  subdivision  of  the  section  denning  murder,  the  charge  was 
held  to  be  erroneous  and  a  new  trial  was  granted. 

Where  the  facts  of  a  case  bring  it  within  any  of  the  degrees  of  manslaughter, 
it  can  not  fall  within  any  definition  of  murder. 

Where  death  is  feloniously  caused  in  a  cruel  and  unusual  manner,  and  in  the 
heat  of  passion,  the  character  of  the  crime  depends  on  the  intent-,  if  done 
without  a  design  to  effect  death,  it  is  manslaughter  in  the  second  degree;  if 
done  with  premeditated  design,  it  is  murder  under  the  first  subdivision  of  the 
section  denning  murder.  But  if  done  in  the  heat  of  passion,  it  can  not, 
whatever  may  have  been  the  design,  be  classed  under  the  second  subdivisioa 
of  the  section  defining  murder. 

Cas^s  stated  in  illustration  of  the  class  supposed  to  be  covered  by  the  second 
subdivision  of  the  section  defining  murder.  Per  BARCULO,  J. 

The  prisoner  was  tried  on  an  indictment  for  the  murder  of 
Daniel  Kane,  at  the  Westchester  Over  and  Terminer,  in  No- 
vember, 1850,  Justice  McCouN,  presiding. 

The  evidence  showed  that  the  prisoner  and  Kane  on  the 
fourth  day  of  July,  1850,  while  both  were  intoxicated,  were 
seen  alone  engaged  in  a  fight  or  scuffle  in  the  public  highway; 
that  the  prisoner  knocked  Kane  down  and  took,  from  the  stone 
wall  near  by,  a  large  stone,  which  he  threw  upon  Kane's  head 
with  so  much  violence  as  to  break  in  his  skull  and  produce 
Jeath. 

The  presiding  judge,  among  other  things,  charged  the  jury 
that  if  they  believed  that  Kane  came  to  his  death  by  a  blow 
from  the  stone  thrown  against  him,  the  case  was  capable  of 
being  regarded  as  a  case  of  murder  under  the  second  subdivi- 


292  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Johnson. 

sion  of  the  section  of  the  statute  defining  murder,  to  which  por- 
tion of  the  charge  the  prisoner  by  his  counsel  excepted. 

The  presiding  judge  also  charged  the  jury  that  the  said 
second  subdivision  was  applicable  to  a  case  where  one  man 
has  overpowered  another,  and  then  proceeds  to  do  an  act  im- 
minently dangerous  to  that  other,  and  evincing  a  depraved 
mind,  regardless  of  human  life,  although  without  premeditated 
design  to  effect  the  death  of  that  other,  and  although  that  act 
was  dangerous  only  to  the  person  killed,  to  which  the  prisoner 
by  his  counsel  also  excepted. 

The  jury  found  the  prisoner  guilty  and  the  cause  was  removed 
into  this  court  by  certiorari. 

F.  Larkin,  for  the  defendant. 

I.  The  evidence  in  this  case,  at  most,  makes  out  but  a  case 
of  manslaughter  in  the  second  degree.  (2  R.  S.  3d  ed.  750,  §  10. 
12;  Revisers'  preliminary  note,  Manslaughter;  3  R.  S.  2d  ed, 
811,  and  also  their  note  to  §  10  of  manslaughter.) 
.  II.  The  judge  erred  in  charging  the  jury,  that  if  "  they  be- 
lieved that  Kane  came  to  his  death  by  a  blow  from  the  stone 
thrown  against  him,  the  case  was  capable  of  being  regarded  as 
a  case  of  murder  under  the  second  subdivision  of  the  section  of 
the  statute  defining  murder."  In  order  to  bring  the  prisoner 
under  this  subdivision  of  the  statute,  the  act  of  killing  must 
have  been  dangerous  to  others,  besides  the  person  killed.  This 
subdivision  of  the  section  is  not  applicable  to  the  case  of  the 
prisoner,  but  was  enacted  to  reach  another  class  of  cases.  (2 
R.  S.  3d  ed.  746,  §  5;  Revisers'  note  to  this  section,  3  R.  S.  2d 
ed.809  [3]  Foster ,256,  id.  261:  1  Hale,  475;  4  Slack  Corn. 
200;  1  Hawk,  ch.  29,  §  12;  id.  ch.  31.  §61;  1  East,  231, 
§  18;  The  People  v.  White,  24  Wend.  520;  The  People  V.Enoch, 
13  Wend.  159;  Barbour  Cr.  L.  27.) 

III.  This  part  of  the  judge's  charge  was  too  restricted;  it 
narrowed  down  the  inquiry  of  the  jury  to  the  simple  fact  whether 
Kane  came  to  his  death  by  a  blow  from  the  stone  thrown  against 
him,"  and  if  they  believed  that  it  was  murder  under  the  second 
subdivision  of  the  section  defining  murder.  This  subdivision 


KINGS,  OCTOBER,   1631  293 

The  People  v.  Johnson. 

intends  the  jury  shall  find  other  facts  besides  the  mere  act  of 
killing:  they  must  find  that  the  act  was  imminently  dangerous 
to  others,  evincing  a  depraved  mind  regardless  of  human  life 
(2  R.  S.  3d  ed.  746,  §5;  Hanford  v.  Mitchell,  4  Hill,  271.) 

IV.  The  judge  erred  in  charging  the  jury,  that  they  could 
find  the  prisoner  guilty  under  the  second  subdivision  of  the  sec- 
tion defining  murder,  without  premeditated  design.  In  order  to 
constitute  murder  under  that  second  subdivision  of  the  statute, 
there  must  be  a  general  premeditated  design  or  malice  afore- 
thought, as  distinguished  "  from  a  premeditated  design  to  effect 
the  death  of  the  person  killed  or  of  any  human  being."  (2  R 
S.  3d  ed.  746,  §  5;  East,  231;  1  Hale,  476;  4  Black.  Com.  300; 
1  Hawk.  ch.  27,  §  12;  id.  Ch.  3 1,  §  61;  Foster,  261;  the  Revisers' 
note  to  §  10,  of  Manslaughter.} 

E.  Wells  (Dist.  Att'y),  for  the  People. 

I,  The  judge  correctly  remarked  "  that  if  the  jury  believed 
that  Kane  came  to  his  death  by  a  blow  from  the  stone  thrown 
against  him,  the  case  was  capable  of  being  regarded  as  a  case 
of  murder  under  the  second  subdision  of  the  statute  defining 
murder." 

The  facts  being  admitted  as  found,  it  is  for  the  court  to  de- 
fine their  legal  character  and  effect  ,  and  to  decide  whether  in 
point  of  law  they  constitute  the  crime  of  murder,  under  this 
branch  of  the  statute.  ( One  by '  s  case,  2d  Ld.  Raym,.  1493;  2 
Strange' s  Rep.  773;  Foster  Cr.  Law,  255, 256;  2  R.  S.  746,  §  5 
sub.  2, 3  ed.) 

II.  The  second  and  third  exceptions  to  the  judge's  charge, 
are   substantially   the  same   matters   and  may    be  considered 
together. 

It  is  not  necessary  that  premeditated  design  to  take  life  should 
exist  nor  that  the  act  producing  the  death  should  endanger  any 
other  than  the  person  killed,  in  order  to  constitute  murder  un- 
der the  second  subdivision  of  §5  of  the  statute;  provided  the 
act  be  such  as  is  immediately  dangerous  to  the  person  killed, 
and  evinces  a  depraved  mind  regardless  of  human  life.  1.  The 
case  of  murder  with  premeditated  design,  is  embraced  in  the 


294  DECISIONS  IN  CRIMINAL  C\SES. 

The  People  v.  Johnson. 

first  branch  of  the  section,  and  is  excluded  from  the  second 
branch,  or  at  most  is  rendered  immaterial.  The  latter  branch 
was  intended  to  include  the  cases  at  common  law,  of  murder 
with  implied  malice,  as  distinguished  from  those  committed 
with  a  settled  determination  and  formed  design.  (2  R.  S.  746, 
§  5;  4  Black.  Com.  199;  Wharton's  Crim.  Law,  225-6,  citing  U. 
S.  v.  Cornell,  2  Mason  Rep.  91;  Foster  Cr.  Law,  256-7;  1  East 
P.  C.  214,  215;  Revisers'  Notes,  vol.  4,  p.  3,  of  this  act;  1  Hale 
P.  C.  449,  note  2,  Jim.  ed.  1847;  1  Russell  on  Cr.  483,  ed.  of 
1841;  White's  case,  24  Wend.  581,  per  Wager,  Senator;  Rec- 
tor's case,  19  Wend.  606-7.)  2.  It  is  not  necessary  that  the  act 
of  killing  should  endanger  any  other  than  the  person  killed,  to 
make  it  murder  under  this  subdivision  of  the  statute.  A  differ- 
ent construction  would  exclude  all  the  cases  of  murder  at  com- 
mon law,  with  implied  malice  (and  where  the  person  killing 
was  not  engaged  in  the  commission  of  a  felony)  from  the  grade 
of  murder  under  our  statute.  Such  is  manifestly  not  the  intention 
of  the  law.  (Revisers'  Notes,  4  vol.  p.  3  of  this  act,  note;  2 
R.  S.  875,  §11;  People  v.  White,  24  Wend.  534,  per  Wai- 
worth,  /.) 

III.  This  case  as  it  stands  on  the  evidence  disclosed  in  the 
bill  of  exceptions,  does  not  properly  fall  under  the  head  of  man- 
slaughter in  the  second  degree,  as  defined  by  the  statute. 

The  killing  being  proved,  it  is  presumed  by  the  law  to  be 
murder,  and  the  circumstances  which  would  reduce  it  to  the 
milder  degree  of  manslaughter,  must  be  affirmatively  shown  by 
the  prisoner.  No  such  evidence  appears  in  this  case.  (2  R. 
S.  750,  §  10,  3d  cd.;  Foster,  255,  citing  2  Ld.  Raym.  1993; 
Stra.  773;  1  East  P.  C.  224,  §  12;  Foster,  255.) 

By  the  Court,  BARCULO,  J., — We  think  the  learned  jus- 
tice who  presided  at  the  Oyer  and  Terminer  erred  in  charg- 
ing the  jury  that  if  they  believed  "  that  Kane  came  to  his 
death  by  a  blow  from  the  stone  thrown  against  him,  the  case 
was  capable  of  being  regarded  as  a  case  of  murder  under  the 
2d  subdivision  of  the  section  of  the  statute  defining  murder." 
He  was  probably  led  into  the  mistake  by  the  remarks  of  the 


KINGS,  OCTOBER,  1851.  395 

The  People  v.  Johnson. 

chancellor  in  the  case  of  The  People  v.  Enoch,  13  Wend.  159, 
an  J  of  Justice  Bronson  in  The  v.  People  Rector,  19  Wend.  606.  It 
would  be  with  extreme  reluctance  that  we  could  be  constrained 
to  dissent  from  the  reasoning  of  those  eminent  jurists.  But  we 
think  that  our  decision  can  stand  consistent  with  those  authori- 
ties, when  it  is  considered  that  the  ingredient  of  passion,  which 
did  not  exist  in  those  cases,  is  the  controlling  and  distinguish- 
ing feature  of  the  present  case;  and  as  the  life  of  a  human 
being  is  involved  in  the  decision,  we  will  proceed  briefly  to 
state  the  grounds  of  our  conclusion  that  the  jury  may  have 
been  misled  by  the  remarks  of  the  learned  justice  at  the  Oyer 
and  Terminer. 

It  is  quite  obvious  that  the  revisers  in  the  first  chapter  relat- 
ing to  "  crimes  and  their  punishment,"  intended  to  present  a 
perfect  system  in  which  every  grade  of  homicide  should  be  dis- 
tinctly and  accurately  classed.  They  state  in  their  notes  that, 
"  It  has  been  supposed  that  there  was  nothing  so  much  wanted 
in  the  criminal  law,  as  a  settled  line  of  distinction  between 
murder  and  manslaughter  which  are  now  so  nearly  connected, 
and  run  into  each  other  so  much,  that  courts  and  juries  often 
mistake,  and  a  lamentable  uncertainty  prevails,  which  operates 
as  well  to  screen  the  guilty  as  to  expose  the  innocent."  This 
evil  they  have  remedied  by  a  careful  and  judicious  classifica- 
tion, so  complete  and  perfect,  that  upon  an  ascertained  state  of 
facts,  every  homicide  can  be  reduced  to  its  appropriate  degrees, 
and  while  it  falls  clearly  within  one  class  can  not  be  brought 
within  any  other.  The  authors  of  this  statute,  unlike  some 
modern  law  givers,  understood  the  precise  force  and  effect  of 
the  language  used;  and  as  a  skillful  surveyor  makes  his  work 
meet  so  that  his  map  covers  the  whole  ground,  neither  more 
nor  less,  so  they  have  included  in  their  system  every  species 
of  homicide  known  to  the  law,  each  degree  standing  by  itself 
and  occupying  its  own  peculiar  ground. 

This  principle,  we  apprehend,  has  not  always  been  kept  in 
view,  even  by  our  courts,  in  giving  construction  to  some  of  the 
sections.  It  seems  to  have  been  supposed  in  some  of  the  cases 
that,  upon  a  certain  state  of  facts,  a  case  might  fall  indiffer- 


296 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Johnson. 


ently  within  two  or  more  degrees  of  homicide.  We  suppose 
that  this  can  never  happen  —  that  if  the  facts  bung  the  case 
within  any  degree  of  manslaughter  it  can  not  also  fall  within 
any  definition  of  murder.  And  if  a  case  should  arise  which 
should  seem  to  run  into  the  two  offences,  the  true  rule  of  con- 
struction requires  us  to  place  it  under  the  head  of  manslaugh- 
ter. This  principle  we  deduce  from  the  statute  itself.  It  com- 
mences by  declaring  that  the  killing  of  a  human  being  without 
authority  of  law  "  is  either  murder,  manslaughter  or  excusable 
or  justifiable  homicide  according  to  the  facts  and  circumstances 
of  each  case."  "  Such  killing,  unless  it  be  manslaughter  or  ex- 
cusable or  justifiable  homicide,  as  hereinafter  provided,  shall  be 
murder  in  the  following  cases: 

1.  When  perpetrated  from  a  premeditated  design  to  effect  the 
death  of  the  person  killed  or  of  any  human  being; 

2.  When  perpetrated  by   any  act  imminently  dangerous  to 
others,  and  evincing  a  depraved  mind,  regardless  of  human  life, 
although  without  any  premeditated  design  to  effect  the  death  of 
any  particular  individual; 

3.  When  perpetrated  without  any  design  to  effect  death  by 
a  person  engaged  in  the  commission  of  a  felony." 

Thus  it  appears  that  by  the  terms  of  the  statute,  the  killing 
of  a  human  being  in  three  specified  cases  is  murder,  unless  it 
falls  within  some  of  the  inferior  classes  of  homicide;  from 
which  we  deduce  the  inference  that  if  a  case  comes  within  any 
degree  of  manslaughter,  it  can  not  be  deemed  murder,  although 
it  is  accompanied  by  some  of  the  circumstances  which  make  up 
the  latter  crime. 

Now,  in  the  case  before  us,  the  prominent  and  undisputed 
facts  show,  that  the  prisoner  and  Kane,  both  intoxicated,  on 
the  4th  of  July  last,  were  seen  alone  engaged  in  a  scuffle  or 
fight,  in  the  public  highway;  that  the  prisoner  knocked  Kane 
down,  and  stepped  to  the  stone  wall  and  took  from  it  a  large 
stone  and  raised  it  with  both  hands  and  threw  it  upon  Kane's 
head,  with  such  force  as  to  crush  his  skull  and  produce  his  death. 

The  first  idea  which  arises  from  this  statement  of  facts  to  my 
mind  is,  that  this  was  the  killing  of  a  human  being  in  a  cruel 


KINGS,  OCTOBER,  1851.  297 

The  People  v  Johnson. 

and  unusual  manner',  and  that  there  is  some  probability  that,  ii 
was  done  in  a  heat  of  passion.  If  this  be  so,  then  the  char- 
acter of  the  crime  depends  upon  the  intent.  If  it  was  done 
"  without  a  design  to  effect  death,"  it  is  plainly  and  clearly 
manslaughter  in  the  second  degree  within  the  10th  section  of 
title  II.  If,  however,  it  was  done  with  "  premeditated  design," 
it  is  murder  under  the  first  subdivision  above  cited  of  sec.  5  of 
title  I.  But  it  can  not,  whatever  may  have  been  the  design, 
be  classed  under  the  second  subdivision  of  that  section,  if  it 
was  done  in  a  heat  of  passion.  This  last  essential  element  upon 
which  the  case  revolved  between  murder  under  the  first  subdi- 
vision, and  manslaughter  in  the  second  degree  seems  to  have 
been  overlooked  on  the  trial.  The  judge  should  have  directed 
the  attention  of  the  jury  to  the  tenth  section  of  the  act  in  rela- 
tion to  manslaughter,  and  instructed  them  that  the  prisoner 
should  be  convicted  under  that  section,  if  they  believed  that  the 
killing  was  in  a  heat  of  passion,  and  without  a  design  to  effect 
death;  and  that  if  it  was  done  with  premeditated  design,  whe- 
ther formed  at  the  time  or  before,  he  was  guilty  of  murder  under 
the  first  subdivision.  Instead  of  this,  the  attention  of  the  jury 
was  directed  particularly  to  the  second  subdivision  and  they 
were  advised  that  the  facts  of  the  case  authorized  a  conviction 
lor  murder  under  that  section. 

We  suppose  that  an  erroneous  impression  may  thus  have 
been  produced  upon  the  minds  of  the  jury.  We  consider  the 
second  subdivision  wholly  inapplicable  to  a  case  where  there  is 
reason  to  believe  that  the  killing  was  in  the  heat  of  passion, 
for  such  killing  never  was  murder  at  the  common  law,  and  the 
revisers  did  not  intend  to  increase  the  cases  of  murder.  That 
subdivision  is  applicable  to  numerous  cases  of  murder  known 
to  the  common  law,  where  malice  was  implied.  It  would 
apply  to  the  case  of  a  man  shooting  into  a  crowd,  or  throwing 
missiles  from  a  house  or  wall  into  the  public  streets  of  a  city, 
without  regard  to  the  lives  of  those  who  might  be  exposed.  It 
may  also  apply  to  the  case  where  but  one  person  is  exposed, 
and  even  where  the  blow  is  aimed  at  the  person.  This  appears 
by  the  case  of  Rector,  if  the  fatal  blow  was  given  not  in  the 

VOL.  I.  38 


29 3  DECISIONS  IN  CRIMINAL  CASES. 

The  People  ».  Johnson. 


heat  of  passion,  which  seems  to  have  been  assumed  by  the 
counsel  and  the  court.  So  if  the  prisoner  had  found  Kane 
sleeping  by  the  stone  wall  and  had  taken  the  stone  in  mere 
wantonness  and  let  it  fall  upon  him  without  designing  to  kill, 
he  would  properly  have  been  convicted  of  murder  under  the 
second  subdivision.  But  the  law  has  respect  to  the  infirmity  of 
human  passion,  and  if  this  blow  was  the  result  of  the  excitement 
of  a  fight,  it  falls  writhin  another  section.  This  construction 
preserves  the  analogies  of  the  common  law:  for  in  the  English 
courts  it  has  been  held  that,  when,  after  mutual  blows  between 
the  prisoner  and  the  deceased,  the  prisoner  knocked  down  the 
deceased,  and  after  he  was  upon  the  ground  stamped  upon  his 
stomach  and  belly  with  great  force,  it  was  manslaughter  only. 
(Russ  Sf  Ry.  C.  C.  166.) 

The  conviction  must  be  reversed  and  the  case  remitted  to 
the  court  of  Oyer  and  Terminerin  and  for  the  county  of  West- 
chester,  with  directions  to  award  a  venire  de  novo.(a) 

Conviction  reversed. 

(a)  The  doctrine  of  this  decision  is  fully  sustained  in  the  case  of  the  People 
v.  Darry,  decided  by  the  court  of  appeals  at  March  term  1S£4,  in  which  the 
second  subdivision  of  the  section  defining  murder  is  held  to  be  inapplicable  to 
a  case  of  personal  combat  between  two  persons,  and  by  which  the  dicta  holding 
a  contrary  doctrine  are  overruled. 


NEW  YORK,  NOVEMBER,  1851. 


NEW  YORK  OVER  AND  TERMINER.     November,  1851.    Edmonds, 
Justice,  presiding. 

THE  PEOPLE  vs.  OTTO  GRUNZIG. 

Where,  on  a  trial  for  murder  by  poisoning,  the  deceased,  on  the  third  day  of 
her  illness,  said  to  her  female  attendant  that  she  expected  to  die  because  she 
was  poisoned  and  also  expressed  a  similar  opinion  at  a  subsequent  time,  and 
at  no  time  expressed  an  opinion  that  she  should  recover,  her  declarations, 
made  after  the  third  day  of  her  illness  down  to  the  time  of  her  death  on  the 
twelfth  day  of  her  illness,  were  received  as  evidence,  although  it  did  not  ap- 
pear that  either  of  her  attending  physicians  had  told  her  she  was  going  to 
die  and  although  it  appeared  that  one  of  the  physicians,  not  understanding 
the  cause  of  her  illness,  had  spoken  to  her  encouragingly  of  her  prospect  of 
recovery. 

The  prisoner  was  tried  and  convicted  of  the  murder  of  his 
wife  Victorine,  by  poisoning  her  with  arsenic. 

On  the  trial,  it  appeared  in  evidence  that  the  deceased,  in 
company  with  the  prisoner  (from  whom  she  had  previously 
separated),  returned  from  the  country  on  Tuesday  afternoon  the 
31st  of  July;  that  they  were  together  that  night,  and  on  the 
ensuing  morning  the  deceased  was  attacked  with  violent  vomit- 
ing and  other  symptoms  usually  accompanying  poisoning  "with 
arsenic.  She  continued  in  nearly  the  same  state,  occasionally 
being  slightly  relieved,  until  the  morning  of  12th  August,  when 
she  died.  During  her  sickness  she  was  attended  by  a  female 
neighbor  in  the  day  time,  the  prisoner  remaining  with  her 
every  night,  and  she  also  received  occasional  visits  from  two 
physicians.  The  first  physician  discontinued  his  visits  on  the 
Tuesday  following  her  first  attack,  and  the  second  physician 
commenced  on  the  next  day,  being  the  eighth  day  of  her  illness. 
The  second  physician  did  not  apprehend  the  cause  of  her  dis- 
ease; on  visiting  her  on  Thursday  preceding  her  death,  he  found 
her  better;  in  her  own  language,  "  I  feel  better,"  said  she;  "I 
do  not  now  vomit;  I  now  begin  to  have  my  monthlies." 
This  he  thought  a  favorable  symptom  and  so  informed  her.  On 
visiting  her  on  Sunday  he  found  her  in  a  dying  condition,  and 
on  Monday  morning  about  two  o'clock  she  died. 


300  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Grunzig. 

With  a  view  to  giving  in  evidence  the  declarations  of  de- 
ceased as  well  before  as  after  the  visits  of  the  second  physician, 
the  female  attendant  of  deceased  was  examined  and  testified  as 
follows: 

By  District  Attorney. — Q. — How  many  days  was  Mrs.  Grun- 
zig  sick  altogether? 

Ji. — Twelve  days. 

Q. — Did  you  visit  deceased  every  day  from  her  first  sickness 
until  her  death? 

Ji. — Yes,  sir. 

Q. — How  often  each  day? 

A. — I  would  only  quit  her  to  get  my  meals. 

Q. — At  any  time  during  those  visits  did  she  express  her 
fears  of  dying? 

Ji. — She  said  she  expected  to  die  because  she  thought  she 
was  poisoned. 

Q. — When  did  she  first  express  this  opinion  as  to  death? 

Ji. — I  think  the  third  day  after  her  first  sickness;  she  was  very 
sick  but  had  her  senses;  she  was  very  bad. 

Q. — After  this  did  deceased  at  any  time  express  any  hopes 
of  getting  well? 

Ji. — She  never  told  me  she  expected  to  live? 

By  Court.     Q. — When  was  this? 

JI. — She  was  taken  sick  on  Wednesday,  and  on  Saturday  she 
first  told  me. 

Q. — Did  her  condition  improve  at  all? 

Ji. — From  bad  it  went  to  worse. 

By  Counsel  for  Prisoner.  Q — Did  any  doctor  attend  her, 
and  what  did  he  say? 

JI. — When  Doctor  Le  Grand  came  (the  second  physician) 
on  his  first  visit  he  said  he  thought  he  could  cure  her.  The 
next  day  she  was  better;  the  day  after  she  was  worse;  the  next 
day  I  found  her  in  a  passion.  The  doctor,  after  deceased  had 
given  herself  up,  gave  her  hopes;  deceased  said  she  expected  to 
die  at  8  A.  M.,  and  at  half-past  12  P.  M.  the  doctor  came;  from 
9  to  11  A.  M.  that  day  her  mind  wandered;  the  doctor  never 
told  her  she  was  going  to  die. 


NEW  YORK,  NOVEMBER,  1851. 


The  People  v.  Grunzig. 


Upon  this  testimony  the  district  attorney  offered  in  evidence 
the, declarations  of  deceased  subsequent  to  the  third  day  of  her 
illness,  as  well  before  as  after  the  visits  of  the  second  physician, 
and  cited  Rex  v.  Moseley  ( 1  Moody's  Crown  Cases,  98.)  After 
argument,  the  court  permitted  the  declarations  of  deceased  to 
be  given  in  evidence.  Prisoner's  counsel  excepted. 

The  prisoner  was  convicted  and  sentenced  to  be  executed. 

The  case  was  submitted  by  the  governor  to  the  judges  of  the 
Court  of  Appeals  for  advisement,  and  the  following  opinion 
was  delivered: 

ALBANY,  21st  January,  1852. 
To  His  EXCELLENCY,  WASHINGTON  HUNT: 

SIR — Your  letter  of  yesterday,  with  the  minutes  of  trial  and 
other  papers  in  the  case  of  Otto  Grunzig,  has  been  received 
and  considered.  After  a  careful  examination  of  the  minutes  of 
the  trial,  we  are  unable  to  say  that  the  evidence  objected  to 
was  improperly  admitted,  or  that  the  prisoner  was  improperly 
convicted,  by  reason  of  any  error  committed  by  the  judge  or  the 
jury.  On -the  contrary,  although  we  think  the  declarations  of 
the  deceased  to  which  exception  was  taken  were  entitled  to  no 
great  weight  with  the  jury,  we  are  of  the  opinion  that  the 
judge  would  have  erred  in  excluding  them  from  their  consider- 
ation We  have  the  honor  to  be,  with  great  respect,  youi 
obedient  servants, 

A.  Gardiner,  F.  G.  Jewett,  Charles  H.  Ruggles,  Alexander  S 
Johnson,  J.  W.  Edmonds,  M.  Watson,  P.  Gridley. 

An  application  was  subsequently  made  to  Mr.  Justice  Harris 
for  an  allowance  of  a  writ  of  error,  which  was  argued  by  Mr 
Blunt,  district  attorney,  for  the  people,  and  H.  L.  Clinton,  foi 
the  prisoner,  and  after  full  advisement,  denied  by  the  judge 

The  prisoner  was  executed. 


302 


DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     Erie  General  Term,  November,  1851.      Tag- 
gart,  Marvin  and  Hoyt,  Justices. 

THE  PEOPLE  vs.  HIRAM  KNICKERBOCKER. 

Where,  on  a  criminal  trial,  a  person  is  drawn  as  a  juror  and  challenged  to  the 
favor,  and  called  as  a  witness  in  support  of  the  challenge  to  prove  a  bias 
growing  out  of  what  he  had  heard  or  read  on  the  subject,  it  is  proper  on  his 
cross-examination,  to  ask  him  his  opinion  as  to  the  character  and  extent  of 
the  supposed  bias  and  whether  he  thinks  it  would  influence  him  after  hearing 
the  evidence. 

Where,  on  the  trial  of  a  challenge  to  the  favor,  improper  evidence  is  received 
and  the  triors  find  the  juror  indifferent,  and  he  is  then  challenged  peremptorily, 
and  it  appears  the  prisoner  had  not  exhausted  all  his  peremptory  challenges 
when  the  panel  was  completed,  the  prisoner  can  not  afterwards  avail  himself 
of  exceptions  taken  to  the  admission  of  such  improper  evidence  before  the 
triors. 

To  entitle  the  prosecution,  on  a  trial  for  murder,  to  introduce  evidence  of  the 
dying  declarations  of  the  deceased,  it  must  appear  by  the  preliminary  evi- 
dence, that  the  declarant  knew,  or  believed,  his  injury  was  mortal  and  that 
death  was  rapidly  approaching.  This  may  be  shown  by  the  expressions  and 
conduct  of  the  deceased,  or  by  other  satisfactory  evidence. 

After  the  introduction  of  the  proper  preliminary  evidence,  the  prosecution  is 
entitled  to  show  such  dying  declarations,  notwithstanding  there  may  be 
other  witnesses  by  whose  testimony  the  same  facts  might  be  proved,  which 
are  sought  to  be  established  by  such  dying  declarations. 

At  the  Erie  Oyer  and  Terminer  held  in  June,  1851,  Justice 
Parker  presiding,  Hiram  Knickerbocker  was  tried  upon  an  in- 
dictment for  the  murder  of  Karl  Harkner  and  convicted.  Ex- 
ceptions were  taken  to  decisions  made  upon  the  trial,  which 
were  brought  before  this  court  for  review.  The  facts  appear 
sufficiently  in  the  opinion  of  the  court. 

/.  Verplanckj  for  the  prisoner. 

Ch.  H.  S.  Williams  (district  attorney),  for  the  people 

By  the  Court,  MARVIN,  J.  —  John  Koch  was  called  as  a 
juror  and  was,  by  the  prisoner,  challenged  to  the  favor.  Tri- 
ors were  appointed  and  Koch  was  examined  as  a  witness  in 


ERIE,  NOVEMBER,  1851.  303 


The  People  v.  Knickerbocker. 


support  of  the  challenge.  He  stated  that  from  what  he  had 
heard  and  read  about  the  murder  of  Harkner,  he  had  formed  an 
opinion  rather  against  the  prisoner.  On  his  cross-examination 
he  stated:  I  have  now  no  opinion  of  his  guilt  or  innocence 
which  would  influence  my  mind  after  hearing  the  evidence. 
This  was  objected  to  on  the  ground  that  the  conjectures  or 
opinions  of  the  witness  as  to  the  way  he  could  act'as  a  juror, 
upon  the  evidence,  were  improper.  The  objection  was  over- 
ruled and  the  prisoner  excepted.  The  witness  further  stated, 
"  I  could  take  the  evidence  and  find  accordingly.  The  opinion 
I  formed  was  based  on  the  supposition  that  the  newspaper 
account  was  true.  I  have  no  opinion  whether  it  was  true." 
The  district  attorney  inquired,  have  you  any  opinion  which  it 
would  require  evidence  to  remove?  This  was  objected  to  as 
calling  for  the  opinion  of  the  witness.  The  objection  was  over- 
ruled and  the  prisoner  excepted.  The  witness  answered  I 
think  not.  On  being  reexamined  by  the  prisoner's  counsel  he 
stated,  "  I  said  and  say  that  from  what  I  read  I  thought  the  pri- 
soner guilty;  if  the  evidence  should  be  as  I  read,  I  think  him 
guilty.  Question  by  the  court  —  State  whether  you  could  try 
this  man  upon  the  evidence  without  bias?  This  question  was 
objected  to  as  calling  for  the  opinion  of  the  witness;  the  objec- 
tion was  overruled  and  the  prisoner  excepted;  the  witness  an- 
swered, I  think  I  could.  The  triors  found  the  juror  indifferent  and 
he  was  then  peremptorily  challenged  by  the  prisoner.  The  chal- 
lenge was  to  the  favor,  and  the  issue  before  the  triors  was, 
wrhether  the  juror  was  indifferent  between  the  people  and  the 
prisoner,  and  the  question  now  is,  was  improper  evidence 
admitted  upon  that  issue?  Could  the  witness  under  the  circum- 
stances give  his  opinion  as  to  his  ability  to  try  the  main  issue 
upon  the  evidence  without  bias? 

In  Lohman  v.  The  People  (1  Com.  R.  384),  J  idge  Gardiner, 
in  delivering  the  opinion  of  the  court  of  appeals,  says,  "  Upon 
an  issue  of  this  kind  from  the  nature  of  the  facts  to  be  estab- 
lished, the  opinion  of  the  juror  derived  from  his  own  conscious- 
ness, was  relevant,  competent  and  primary  evidence."  He 
says,  in  that  case,  the  effect  of  the  evidence  was,  "  to  elicit  an 


304  DECISIONS  IN  CRIMINAL  CASES. 

The  People,  v.  Knickerbocker. 

opinion  as  lo  the  strength  of  the  impression  to  which  he  had 
previously  testified,  and  whether  he  was  conscious  of  the  ability 
to  render  a  verdict  according  to  the  evidence,  notwithstanding. 
If  the  juror  answered  in  the  affirmative,  it  would  have  been  a 
declaration  that  he  possessed  such  ability.  This  would  be  but  an 
opinion,  but  one  founded  upon  his  own  consciousness,  and  so 
far  entitled  to  the  consideration  of  the  triors,  although  by 
no  means  conclusive  upon  them."  He  adds,  "  The  question 
then  was  equivalent  to  asking  the  juror,  whether  he  felt  or  was 
conscious  that  he  could  render  an  impartial  verdict,  notwith- 
standing all  he  had  heard  or  read."  The  decision  in  Lohman's 
£ase  seems  to  be  an  authority  in  point  in  the  present  case. 

There  is  also  another  answer  to  these  exceptions.  After  the 
triors  had  found  the  juror  indifferent,  the  prisoner  challenged 
him  peremptorily.  He  did  not  sit  as  one  of  the  jurors  upon  the 
trial  of  the  main  issue.  The  prisoner  had  not  exhausted  his 
peremptory  challenges  when  the  panel  was  completed.  He 
can  not  now  avail  himself  of  the  exceptions  taken  to  decisions 
upon  the  trial  of  the  collateral  issue  raised  upon  the  challenge. 
{Freeman  v.  The  People,  4  Denio,  31;  People  v.  Bodine,  1 
Denio,  300.) 

The  people  proved  that  Harkner  died,  on  the  23d  day  of  Janu- 
ary about  8  o'clock  in  the  morning,  and  they  gave  evidence 
tending  to  show  that  he  died  from  the  effect  of  a  pistol  shot; 
and  that  the  prisoner  and  one  Hall  were  together  at  the  place 
where  Harkner  received  the  wound  on  the  evening  of  Tuesday, 
the  21st  January,  and  that  the  prisoner  then  had  on  a  light 
colored  coat  and  Hall  a  dark  one;  and  that  the  prisoner  had, 
on  the  same  evening,  stolen  a  watch  from  Harkner;  also  that 
the  man  with  the  dark  coat,  had  a  pistol  in  his  hand  and  put  it 
in  his  pocket  immediately  after  the  report  of  the  pistol  by  the 
discharge  of  which  Harkner  was  wounded.  Harkner  was 
taken  home  covered  with  blood  and  apparently  dead.  On 
being  placed  upon  a  bed,  he  made  signs  and  talked  in  a  whis- 
per. He  said,  one  arm  and  one  leg  were  much  like  death,  and 
he  would  rather  die  than  remain  in  pain.  His  wife  told  him 
she  hoped  he  would  not  leave  her,  and  he  told  her  she  had 


ERIE,  NOVEMBER,   1851. 


The  People  v.  Knickerbocker. 


a  child  and  she  should  console  herself  with  that.  He  did  not 
say  directly  that  he  thought  he  should  die.  The  attending 
surgeon  testified  that  Harkner  was  very  weak  and  could  only 
speak  a  little  at  a  time,  that  he  was  paralyzed  on  one  side,  that 
he  could  faintly  answer  on  Wednesday  night,  that  he  endea- 
vored to  console  him,  but  he  would  not  be  consoled,  but  said  he 
would  die,  but  did  not  say  when.  He  said  he  could  not  get 
well,  he  must  die. 

The  people  offered  in  evidence  the  declarations  of  Harkner 
made  the  evening  before  his  death,  as  to  the  person  who  killed 
him.  The  prisoner's  counsel  objected,  the  objection  was  over- 
ruled and. an  exception  taken.  The  witness  testified  that  he 
said  to  Harkner  the  evening  before  his  death,  "  I  guess  you 
will  get  over  it  again;"  Harkner  replied,  "  I  never  can  get 
over  it,  I  can't  live."  On  being  asked  who  shot  him,  who 
hurt  him,  he  said  the  man  who  stole  his  watch;  that  the  man 
with  the  white  coat  on  shot  him,  and  the  man  with  the  dark 
coat  on  stabbed  him.  About  12  o'clock  the  same  night,  in 

O        * 

answer  to  a  question,  put  by  his  wife,  he  spoke  about  dying. 
The  objection  to  the  declarations  of  deceased,  was,  that  it  did 
not  appear,  his  statements  were  made  under  the  belief  or  im- 
pression of  immediate  dissolution,  or  under  the  belief  that  he 
would  die. 

After  a  careful  examination  of  this  case  as  disclosed  in  the 
bill  of  exceptions,  I  am  of  the  opinion  that  the  evidence  as  to 
the  dying  declaration  of  Harkner  was  properly  admitted.  The 
principle  upon  which  this  evidence  is  received  in  trials  for 
homicide,  as  stated  by  Eyre,  C.  B.,  is,  that  the  declarations 
were  made  in  extremity,  when  the  party  is  at  the  point  of 
death  and  •when  every  hope  of  this  world  is  gone,  when  every 
motive  of  falsehood  is  silenced,  and  the  mind  is  induced,  by  the 
most  powerful  considerations,  to  speak  the  truth.  A  situation 
so  solemn  and  so  awful  is  considered,  by  the  law,  as  creating1 
an  obligation  equal  to  that  which  is  imposed  by  an  oath  ad- 
ministered in  court.  (Roscoes's  Cr.  Ev.  7.) 

The  rule  has  been  applied  in  a  great  variety  of  cases,  pre- 
senting different  circumstances.  When  the  preliminary  evi- 

VOL  I.  39 


30(3  DECISIONS  IN  CRIMINAL  CASES. 

The  People  r.  Knickerbocker. 

dence  has  not  been  satisfactory  to  show  that  the  declarant  knew 
or  believed  that  his  injury  was  mortal  and  that  death  was  ra- 
pidly approaching,  the  evidence  of  the  declarations  has  been 
rejected;  or  when  from  the  evidence  it  appeared  that  the  party 
entertained  hopes  of  recovery,  or  it  was  left  doubtful  whether 
he  did  not  entertain  such  hopes,  the  evidence  has  been  rejected. 
If  we  test  the  present  case  by  any  of  the  rules  that  have  been 
established,  the  evidence  was  properly  admitted.  The  decla- 
rations were  certainly  made  in  extremity,  and  when  the  decla- 
rant was  at  the  point  of  death.  But  they  are  only  admissible 
when  the  party  making  them,  knows  or  thinks  he  is  in  a  dying 
state.  Positive  evidence,  however,  of  that  knowledge  or  belief, 
is  not  required.  It  may  be  inferred  from  the  general  conduct 
or  deportment  of  the  party,  nor  is  it  necessary  to  prove  ex- 
pressions of  apprehension  of  immediate  danger,  if  it  be  clear 
that  the  party  does  not  expect  to  survive  the  injury.  (Ros.  Cr. 
Ev.  29,  30,  and  cases  there  cited.) 

If  we  consider  Harkner's  real  condition,  we  find  nothing  in 
it  upon  which  to  build  a  hope;  his  conduct  and  declarations 
furnish  no  evidence  that  he  entertained  any  hope  of  recovery; 
on  the  contrary,  they  furnish  very  strong  evidence  that  he  did 
not  believe  or  entertain  any  hope  that  his  recovery  was  possi- 
ble. He  appears  to  have  been  fully  conscious  of  the  extremity 
to  which  he  was  brought,  and  that  he  must  die  and  could  not 
recover.  (2  Russ.  on  Crimes,  682  to  687,  and  cases  cited.)  The 
evidence  shows,  I  think,  that  all  hope  of  this  world  was  gone 
He  rejected  consolation,  and  consoled  his  wife. 

It  was  said  upon  the  argument,  that  the  rule  admitting  dying 
declarations,  is  founded  in  necessity,  and  that  when  other  evi- 
dence of  the  facts  to  which  the  declarations  state,  can  be,  or  is 
given,  the  necessity  does  not  exist,  and  that  therefore  the  decla- 
rations should  not  be  received. 

It  appears,  in  the  present  case,  that  it  was  proved  on  the  part 
of  the  people,  that  the  man  with  the  dark  coat  had  a  pistol  in 
his  hand  and  put  it  in  his  pocket  immediately  after  the  report  of 
the  pistol  wounding  Harkner.  This  is  the  entire  statement  of 
this  evidence  in  the  bill  of  exceptions.  The  declarations  of 


ERIE.  NOVEMBER,  1851.  307 


The  People  v.  Knickerbocker. 


Harkner  related  to  the  shooting  and  stabbing,  and  he  designated 
the  man  in  the  light  colored  coat  (the  prisone^^as  the  man  who 
shot  him.  It  is  argued  that  as  the  people  gave  evidence  in 
relation  to  the  shooting,  the  declarations  of  Harkner  should  not 
have  been  received.  Roscoe,  in  his  Criminal  Evidence,  says: 
'*  Evidence  of  dying  declarations  has  been  considered,  by  some, 
to  be  admissible,  from  necessity,  since  it  often  happens  that 
there  is  no  third  person  present  to  be  an  eye  witness  to  the  fact 
and  the  usual  witness  in  other  felonies,  viz.,  the  party  injured, 
is  got  rid  of.  The  rule,  in  its  origin,  may  have  been  adopted 
from  necessity,  but  it  is  now  well  established  and  rests  upon 
principle,  which  do  not  exclude  the  declarations,  although  the 
fact  declared  may  be  susceptible  of  proof  from  other  evi- 
dence." 

The  dying  declarations  are  received  as  evidence  -in  the  cause, 
and  if  there  are  living  witnesses  who  can  give  evidence  touch- 
<ng  the  same  facts,  they  may  be  called  and  examined,  and  the 
whole  evidence  may  be  submitted  to  the  jury.  We  have  not 
been  referred  to  any  case  where  this  question  has  been  raised. 
In  this  case  the  facts,  as  stated  by  Harkner,  had  not  been  proved. 
His  statement  was  that  the  man  in  the  light  coat  shot  him,  and 
the  man  in  the  dark  coat  stabbed  him.  The  witness,  who  had 
been  examined,  stated  .that  the  man  in  the  dark  coat  had  a 
pistol  immediately  after  the  report.  It  does  not  appear  from 
the  evidence,  whether  the  prisoner  had  a  pistol  or  riot,  or  which 
of  the  two  persons  shot.  The  evidence  proved  a  circumstance 
from  which  an  inference  might  he  drawn,  that  the  man  in  the 
dark  coat  discharged  the  pistol.  Harkner  said  it  was  the  man 
in  the  light  coat  that  shot  him,  and  all  this  evidence  was  pro- 
per for  the  jury. 

The  objection  to  the  evidence  of  the  dying  declarations  was 
not  put,  at  the  trial,  upon  the  ground  that  living  witnesses  had 
spoken  or  could  speak  to  the  facts,  to  which  the  declarations 
related,  but  upon  the  ground  that  it  did  not  appear  that  the 
statements  were  made  under  the  belief  or  impression  of  imme- 
diate dissolution,  or  under  the  belief  that  the  declarant  would 
die. 


308  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Gay. 

I  have,  however,  briefly  considered  the  objection  no'w  taken; 
and  in  my  opinion  it  is  not  well  founded.  No  error  was  com- 
mitted upon  the  trial,  and  a  new  trial  should  be  denied. 

New  trial  denied. 


SUPREME  COURT.     Albany  General  Term,  December,  1851. 
Harris,  Parker  and  Wright,  Justices. 

THE  PEOPLE  vs.  NEWTON  GAY. 

The  fact  that  a  witness  admits,  on  his  cross-examination,  that  he  has  been 
prosecuted  and  hound  over,  on  a  charge  of  perjury,  will  not  authorize  the 
party  calling  the  witness  to  give  evidence  of  the  general  good  character  of 
the  witness. 

A  party  can  only  give  evidence  of  the  good  character  of  his  witness,  when 
impeaching  witnesses  have  been  first  called  on  the  other  side. 

By  impeaching  witnesses,  in  such  case,  is  meant  only  such  as  have  spoken  to 
general  character,  or  to  character  for  truth. 

This  was  a  writ  of  error  to  the  Columbia  Oyer  and  Terminer 
In  October,  1851,  the  defendant  was  tried  in  that  court  on  an 
indictment  for  rape,  alleged  to  have  been  committed  on  the 
person  of  Sarah  Pilling,  and  found  guilty  and  sentenced  to  im- 
prisonment in  the  state  prison  at  Sing  Sing  for  the  term  of  ten 
years.  On  the  trial,  many  witnesses  were  called  and  examined 
on  both  sides.  The  defendant  then  called  and  examined  John 
W.  Wood,  who  gave  evidence  material  in  the  cause.  On  his 
cross-examination  in  behalf  of  the  prosecution,  the  witness,  ad- 
mitted and  testified  that  he  had  been  prosecuted  at  Coxsackje, 
before  Esq.  Heermance,  in  a  criminal  suit,  on  a  charge  of  per- 
jury, and  was  committed  for  trial.  That  the  perjury  charged 
was  alleged  to  have  been  committed  in  a  suit  tried  at  Athens  on 
the  26th  day  of  September  last,  in  favor  of  Newton  Gay  against 
Lewis  and  George  Raymond,  who  made  the  complaint  against 
witness.  1  hat  George  Gay,  a  brother  of  Newton  Gay,  was 
also  committed.  That  witness  had  also  been  sworn  as  a  witness 
in  another  suit  for  George  Gay  against  Patrick  Kernan.  That 


ALBANY,  DECEMBER,   1851.  309 

The  People  r'Gay. 

the  binding  over  of  witness  on  the  charge  of  perjury  was  after 
the  examination  of  said  Pilling,  the  complainant,  had  taken 
place  on  the  charge  against  Newton  Gay  for  rape. 

The  counsel  for  the  defendant  then  offered  to  prove  the 
general  good  character  of  the  witness,  Wood,  for  truth  and 
veracity,  which  was  objected  to  by  the  counsel  for  the  people, 
and  the  objection  sustained  by  the  court,  to  which  the  counsel 
for  the  defendant  excepted. 

K.  Miller,  for  defendant. 

The  court  erred  in  excluding  the  evidence  offered  by  the  de- 
fendant, of  the  good  character  of -Wood  for  truth  and  veracity. 
(The  People  v.  Rector,  19  Wend.  569;  The  People  v.  Carter,  2 
Hill,  317.)  The  facts  elicited  upon  the  cross-examination  of  this 
witness  had  a  direct  tendency  to  impeach  his  credibility. 

J.  H.  Reynolds,  for  the  people. 

I.  The  evidence  of  the  good  character  of  the  witness  Wood 
was  properly  excluded.  1.  Because  the  evidence  that  he  had 
been  accused  of  perjury  in  another  case  did  not  affect  his  general 
moral  character.  Every  man  is  presumed  innocent.  (Jackson 
v.  Osborn,  2  Wood,  555;  1  Phil.  Ev.  229,  293;  Cow.  #  Hill  Notes, 
771:  8  Car.  &  Payne,  726.)  2.  If  he  had  admitted  himself 
guilty  of  the  crime,  the  case  would  have  been  different.  His 
general  moral  character  would  then  have  been  reached.  3. 
This  case  is  also  to  be  distinguished  from  the  case  where  a 
witness  on  his  cross-examination  admits  his  course  of  life  to 
have  been  infamous,  for  that  necessarily  goes  to  moral  cha- 
racter. 4.  The  case  of  The  People  v.  Rector  (19  Wend.  569), 
stands  alone  and  is  unsupported  by  reason  or  authority.  Justice 
Bronson  in  that  case  shows  the  judgment  of  the  majority  of  the 
court  to  have  been  against  the  whole  current  of  authority  on 
the  law  of  evidence.  The  case  can  not  be  sustained,  and  ought 
not  to  be  followed  as  a  precedent.  5.  The  supreme  court,  in 
The  People  v.  Hulse  (3  Hill,  309),  substantially  overrule  The 
People  v.  Rector,  and  the  principle  of  the  case  of  Houghtuling 


310 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  r.  Gay. 


v.   Kelderhouse  (2  Barbour,  194)  affirmed   1  Cow.   R.  is  di- 
rectly hostile  to  Rector's  case  and  overrules  it. 

By  the  Court,  PARKER,  J. — The  only  question  presented  in 
this  case  is  whether  the  facts  shown  by  the  prosecution  on  the 
cross-examination  of  Wood  authorized  the  defendant  to  intro- 
duce witnesses  to  show  Wood's  general  good  character  for  truth. 
It  is  urged  on  the  part  of  the  defence  that  the  cross-examination 
of  Wood  was  an  impeachment  of  his  general  character  which 
would  justify  the  calling  of  witnesses  to  support  it. 

In  the  case  of  The  People  v.  Rector  ( 19  Wend.  569),  Gilles- 
pie,  a  witness  called  in  behalf  of  the  prisoner,  when  cross- 
examined  on  the  part  of  the  prosecution,  admitted  that,  though 
he  had  a  wife  and  children,  he  had  been  living  for  two  years 
in  adulterous  intercourse  with  a  woman,  who  was  with  him  at 
the  time  of  the  transaction  in  question;  that  he  was  in  the  habit 
of  frequenting  porter  houses  at  unreasonable  hours,  had  been  in 
no  business  for  two  years,  but  had  been  living  on  a  small  sum 
previously  accumulated,  instead  of  paying  his  debts  with  it. 
The  counsel  for  the  prosecution,  after  proving  by  two  witnesses 
that  Gillespie  had,  previous  to  giving  his  testimony,  disavowed 
all  knowledge  of  the  transaction,  and  contradicting  his  testi- 
mony in  other  respects,  called  one  Tallman  and  inquired  of  him 
as  to  the  general  character  of  Gillespie  for  truth  and  veracity; 
to  which  he  answered  he  knew  nothing  against  it,  never  having 
heard  his  character  for  truth  called  in  question.  The  counsel 
for  the  prisoner  then  offered  to  prove  the  general  good  charac- 
ter of  Gillespie  for  truth,  which  was  excluded.  The  supreme 
court  held,  Justice  Bronson  dissenting,  that  such  evidence  should 
have  been  received.  This"  decision  was  placed  upon  the  ground 
that  the  facts  shown  by  Gillespie,  on  his  cross-examination, 
were  an  impeachment  of  his  general  moral  character;  and  a 
majority  of  the  court  held  that  when  the  general  moral  charac- 
ter of  a  witness  is  impeached,  whether  by  witnesses  called  for 
that  purpose  or  on  his  own  cross-examination,  it  is  competent 
for  the  party  calling  him  to  support  him  by  evidence  of  general 
good  character. 


ALBANY,  DECEMBER,  IS-31. 


The  People  v.  Gay. 


In  The  People  v.  Carter  (2  Hill,  317),  a  material  witness  for 
the  prisoner  admitted,  on  his  cross-examination  by  the  counsel 
for  the  people,  that  he  had  been  complained  of  and  bound  over 
on  a  charge  of  passing  counterfeit  money.  The  prisoner's 
counsel  then  offered  to  prove  the  witness'  good  character  for 
truth,  which  was  rejected  by  the  court.  The  supreme  court,  in 
a  "  per  curiam"  opinion  of  four  lines,  held  that  the  case  came 
within  the  principle  established  in  The  People  v.  Rector,  and 
ordered  a  new  trial. 

If  the  decision  in  The  People  v.  Carter  is  law,  it  is  undoubt- 
edly controlling  in  the  case  under  advisement;  for  the  question 
presented  is,  in  both  cases,  the  same.  It  will  be  observed  that 
the  law  was  not  at  all  discussed  by  the  court  in  The  People  v. 
Carter.  It  was  decided  on  the  argument,  on  the  supposition 
that  it  was  governed  by  the  decision  in  The  People  v.  Rector. 
Now,  I  think  a  more  careful  consideration  of  the  case  would 
have  satisfied  the  court  that  it  did  not  come  within  the  rule  laid 
down  in  The  People  v.  Rector.  In  the  case  of  Rector,  the  wit- 
ness on  his  cross-examination  testified  to  and  admitted  acts  of 
gross  immorality.  In  the  case  of  Carter,  the  witness  on  his 
cross-examination  did  not  admit  or  testify  to  any  immoral  con- 
duct. He  only  stated  that  he  had  been  complained  of  and 
bound  over  on  a  charge  of  passing  counterfeit  money.  No  guilt 
was  established.  On  the  contrary,  the  law  presumed  the  wit- 
ness innocent  until  he  was  proved  to  be  guilty.  The  isolated 
fact  that  he  had  been  bound  over  proved  nothing  against  his 
moral  character.  Conceding,  therefore,  that  the  case  of  Rector 
was  correctly  decided,  I  think  it  is  plain  that  the  court  erred, 
in  the  case  of  Carter,  in  supposing  it  was,  in  principle,  like 
that  of  Rector. 

But  I  think  both  these  cases  have  been  virtually  overruled  by 
the  later  case  of  The  People  v.  Hulse  (3  Hill,  309.)  That  was 
the  trial  of  an  indictment  for  rape.  The  prisoner  attempted  to 
discredit  the  testimony  of  the  complainant.  1.  By  showing, 
on  her  cross-examination,  that  her  story  was  improbable  in 
itself;  2d.  By  disproving  some  of  the  facts  to  which  she  testified; 
3  By  evidence  that  her  conduct  was  inconsistent  with  the  idea 


312  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Gay. 

of  the  offence  having  been  committed;  and  4.  By  calling  wit- 
nesses to  show  that  the  account  which  she  had  given  of  the 
matter,  out  of  court,  did  not  correspond  with  her  statements 
under  oath.  It  was  held  that  this  was  not  an  attack  on  the 
o-eneral  character  of  the  witness,  and  therefore  evidence  of  her 

& 

good  character  was  inadmissible  in  reply.  Justice  Cowen  dis- 
sented, and  he  was  the  judge  who  delivered  the  opinion  of  the 
majority  of  the  court  in  the  case  of  Rector.  In  dissenting,  he 
says,  in  substance,  that  he  still  holds  to  the  opinion  he  ex- 
pressed in  The  People  v.  Rector,  that  evidence  of  contradictory 
statements  is  such  an  impeachment  as  to  authorize  evidence  of 
general  character. 

It  is  not  necessary  in  this  case  to  go  so  far  as  to  question  the 
law  in  the  case  of  Rector.  There  the  continued  immoral  conduct 
of  the  witness  was  proved.  In  the  case  of  Carter,  and  in  the 
case  under  consideration,  there  had  only  been  a  charge  made 
of  a  single  moral  delinquency,  and  the  presumption  of  law 
would  be  in  favor  of  the  witness's  innocence. 

But  the  questions  presented  in  the  case  of  Rector  and  in  the 
case  of  Hulse,  were  in  principle  the  same.  In  the  latter  case, 
as  well  as  in  the  former,  the  improbability  of  the  story,  the 
facts  disproved,  and  the  different  and  contradictory  statements 
of  the  witness,  were  evidence  of  a  want  of  moral  character.  I 
think  the  decision  on  this  point  in  The  People  v.  Rector,  which 
rested  mainly  on  one  or  two  English  nisi  prius  cases,  was  a 
departure  from  a  salutary  and  well  settled  principle,  and  ought 
not  to  be  sustained.  "The  general  rule,"  says  Bronson,  J.,  in  Tha 
People  v.  Hulse,  "  is  that  a  party  can  only  give  evidence  of 
good  character  of  his  witness,  where  impeaching  witnesses  have 
been  first  called  on  the  other  side.  By  impeaching-  witnesses, 
I  mean  such  as  have  spoken  to  general  character,  or  character 
for  truth;  and  not  such  as  have  merely  given  a  different  account 
of  the  facts,  or  proved  that  the  witness  has  made  declarations 
out  of  court  inconsistent  with  his  testimony  on  the  trial.  The 
question  of  character  must  be  made  by  the  opposite  party  and 
not  by  the  one  who  calls  the  witness." 

The  only  English  case,  in  which  a  departure  has  been  al- 


ALBANY,  DECEMBER,  1851. 


The  People  v.  Gay. 


lowed  from  this  rule,  was  that  of  Rex  v.  Clark.  (2  Stark.  Rep. 
213.)  There  the  prosecutrix  admitted  that  she  had,  some 
years  before,  been  twice  sent  to  the  house  of  correction,  on 
charges  of  having  stolen  money  from  her  master,  and  Holroyd, 
J.,  admitted  evidence  to  show  that  her  subsequent  conduct  had 
been  good.  This  nisi  prius  case  is  the  one  referred  to  by  the 
writers  on  the  law  of  evidence,  as  authority  for  calling  witnesses 
to  general  character  to  sustain  a  witness  attacked  on  cross- 
examination.  It  is  like  the  case  of  The  People  v.  Rector,  and 
mlike  this  case  and  that  of  the  People  v.  Carter,  in  one  im- 
portant feature.  On  the  cross-examination,  the  immorality  was 
established,  and  not  merely  shown  to  have  been  charged.  The 
witness  had  been  convicted  of  the  offence  charged.  But  it  is 
unlike  the  case  of  Rector  in  another  feature  equally  important: 
it  was  only  the  subsequent  conduct  which  was  shown  to  be 
good;  that  is  to  say,  a  subsequently  acquired  good  character 
was  allowed  to  be  proved.  Whereas,  in  the  case  of  Rector, 
the  general  good  character  was  permitted  to  be  proved,  although 
the  witness  had  admitted  his  immoral  conduct.  The  decision 
in  the  case  of  Rector  went  still  further  than  any  which  preceded 
it.  But  the  decision  in  Rex  v.  Clark,  was  not  recognized  as 
sound  law  in  the  subsequent  case  of  Doe  v.  Harris.  (7  Car  Sf 
Payn,  330.) 

In  Jackson  v.  Walker  (4  Esp.  R.  50),  one  of  the  subscribing 
witnesses  to  a  will,  imputing  fraud  to  the  other  two,  in  procur- 
ing the  will,  and  they  being  dead,  witnesses  were  called  lo 
their  good  character,  in  order  to  repel  the  imputation.  And 
this  seeming  exception  to  the  general  rule  was  sanctioned  in 
Rowe  v.  Reed  (3  Moore  fy  Payne,  4;  S.  C.  Bing.  435),  where 
similar  evidence  was  received.  But  it  was  not  supposed  that 
such  evidence  would  have  been  allowed  if  the  witnesses  had 
been  living;  and  in  the  case  last  cited,  all  the  judges  placed 
the  decision  on  the  ground,  that  such  evidence  was  secondary 
proof,  receivable  from  necessity.  And  in  The  Bishop  of  Dur- 
ham v.  Beaumont  (1  Camp.  210),  Lord  Ellenborough,  said  that 
if,  in  Jackson  v.  Walker,  the  witness  had  been  alive,  they  must 
have  been  personally  adduced,  when  their  character  would 

VOL.  I.  40 


3J4  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Gay. 


have  appeared  on  thtir  cioic-exaraination.  These  cases,  in  m} 
opinion,  have  no  bearing  upon  the  question  under  consideration 
They  relate  to  proof  of  the  good  character,  not  of  the  witness, 
but  of  third  persons,  who  are  deceased  and  can  not  therefore  be 
called  to  explain  certain  facts  proved,  which  tend  to  their  im- 
peachment. And  yet  these  cases,  together  with  that  of  Rex  v. 
Clark,  are  those  relied  upon  by  Justice  Cowen  in  the  conclu- 
sion to  which  he  came  in  The  People  v.  Rector. 

In  the  Bishop  of  Durham  v.  Beaumont,  Lord  Ellenborough 
refused  to  admit  evidence  in  the  support  of  the  character  of  a 
witness,  who  stood  contradicted  by  another  witness.  In  Dodd 
v.  Norris  (3  Camp.  519),  which  was  an  action  for  seducing  the 
plaintiff's  daughter,  she  was  called  as  a  witness  for  the  plaint- 
iff, and  was  cross-examined  at  length  on  the  part  of  the  defend- 
ant, to  show  she  had  been  guilty  of  extreme  indelicacy  and  great 
levity  of  conduct.  Lord  Ellenborough  refused  to  allow  the 
plaintiff  to  call  witnesses  in  support  of  her  general  character, 
and  said  she  could  have  an  ample  opportunity  to  explain  on 
her  reexamination,  as  far  as  truth  could  permit,  the  facts  eli- 
cited on  her  cross-examination.  And  in  the  later  case  of  Doe 
v.  Harris  before  cited,  Coleridge,  J.,  refused  to  permit  the  de- 
fendant's counsel  to  call  witnesses  to  prove  the  good  character 
of  a  witness,  whose  moral  character  had  been  attempted  to  be 
impeached,  on  his  cross-examination.  The  decisions  in  the 
English  courts,  with  the  single  exception  of  Rex  v.  Clark, 
which  I  have  shown  to  have  been  overruled,  agree  in  the  gene- 
ral rule  that  witnesses  can  only  be  called  to  show  general  good 
character  of  a  witness,  where  witnesses  have  first  been  called 
to  impeach  it. 

In  Russell  v.  Coffin  (8  Pick.  143),  the  deposition  of  a  witness 
taken  out  of  court,  was  introduced  for  the  purpose  of  contra- 
dicting his  evidence  in  court;  and  the  party  who  called  the 
witness  was  not  permitted  to  sustain  him  by  evidence  of  his 
general  good  character.  Parker,  Ch.  J.,  sa  d,  it  had  never  been 
decided  that  such  evidence  of  general  good  character  was  ad- 
missible, when  the  witness  was  contradicted,  either  by  his  own 
declarations  or  by  other  witnesses.  So  in  Rogers  v.  Moore, 


ALBANY,  DECEMBER,    1851. 


The  People  v.  Gay. 


decided  in  1833  (10  Conn.  13),  evidence  of  the  general  good 
character  of  a  witness  was  held  to  be  inadmissible,  where  his 
general  character  had  not  been  impeached,  although  an  attempt 
had  been  made  to  impair  his  credibility  on  his  cross-examina- 
tion, to  prove  facts  inconsistent  with  his  testimony,  and  to 
show  that  he  had  been  privy  to  a  fraud  in  a  deed  under  which 
the  plaintiff  claimed  title.  In  giving  the  opinion  of  the  court, 
Church,  J.,  reviews  all  the  English  cases  above  cited  .and  comes 
to  the  same  conclusion  arrived  at  in  The  People  v.  Hulse. 

I  think  it  is  fortunate  for  the  administration  of  justice  in  this 
state  that  the  departure  from  this  rule  in  the  case  of  The  People 
v.  Rector  has  been  overruled  and  the  uniformity  of  the  law 
maintained  in  The  People  v.  Hulse. 

All  concede  that  witnesses  ought  not  to  be  called  to  sustain 
character,  until  such  character  is  impeached.  But  it  is  said 
that  the  facts  elicited  on  a  cross-examination,  showing  moral 
delinquencies,  constitute  such  an  impeachment.  This  can  not 
be,  because  it  is  well  settled  that  evidence  to  discredit  a  wit- 
ness must  be  to  his  general  character  and  not  to  specific  acts. 
(Wike  v.  Lightner,  11  Serg.  fy  Rawle,  198.)  It  is  certain  a 
witness  can  not  be  called  to  prove.specific  acts  by  way  of  im- 
peachment; and  there  is  no  more  reason  for  allowing  the  speci- 
fic acts  proved  on  the  cross-examination  to  constitute  such  an 
impeachment.  There  is  no  danger  that  the  witness  or  the 
party  calling  him  will  suffer  injustice  by  a  too  willing  disclo- 
sure, on  cross-examination,  of  discreditable  circumstances.  The 
feeling  and  interest  of  the  witness  have  naturally  an  opposite 
tendency.  Such  unfavorable  circumstances,  when  proved,  do 
not  constitute  moral  character;  they  are  only  an  element  in  it. 
That  they  are  not  regarded  as  making  up  moral  character,  is 
evident  from  the  fact  that  a  witness  can  not  be  called  to  prove 
such  circumstances  by  way  of  impeachment.  It  is  no  answer 
to  say  they  are  a  part  of  the  moral  character,  for  general 
character  only  can  be  shown. 

In  a  criminal  case,  evidence  of  the  general  bad  character  of 
the  defendant  can  not  be  received  until  evidence  of  his  general 
good  character  has  been  introduced.  This  rule  is  reversed  in 


316 


LECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Gay. 


regard  to  a  witness,  who  can  not  be  sustained  until  his  general 
character  has  been  assailed.  In  both  cases,  general  evidence 
only  can  be  introduced.  In  neither  case,  on  either  side  of  the 
question,  can  particular  acts  be  shown.  In  accordance  with 
this  general  principle,  it  was  held  in  Gough  v.  St.  John  (16 
Wend.  646),  in  an  action  on  the  case  for  a  fraudulent  repre- 
sentation, that  evidence  of  the  good  character  of  the  defendant 
was  inadmissible.  And  in  Houghtaling  v.  Kelderhouse  (2 
Barb.  S.  C.  R.  194;  1  Corns.  130),  it  was  decided  in  an  action 
for  slander,  that  the  plaintiff'  could  not  be  permitted  to  intro- 
duce evidence  of  his  good  character,  in  reply  to  evidence  intro- 
duced by  the  defendant  tending  to  prove  the  truth  of  the  charge. 

It  would  greatly  multiply  the  issues  to  be  tried,  and  need- 
lessly increase  the  prolixity  of  trials,  and  I  think,  also,  tend  to 
mislead  the  jury  from  the  more  important  questions  of  the  case, 
if  general  character  may  be  tried  on  every  contradiction 
between  witnesses,  or  whenever  a  witness  shall  admit,  on  his 
cross-examination,  some  previous  immoral  conduct  on  his  part. 
Still  greater  would  be  the  evil,  if  such  general  character  is  to 
be  inquired  into  in  every  case  where  a  witness  admits  on  his 
cross-examination  that  he  has  been  accused  of  some  offence. 
If  an  isolated  case  of  accusation  only  is  an  impeachment  of 
general  character,  calling  for  evidence  in  support  of  it,  the  pre- 
sumption of  innocence  is  violated,  the  law  that  requires  gene- 
ral and  not  specific  evidence  is  disregarded,  and  the  issues  to 
be  tried  are  increased  beyond  measure  or  endurance. 

I  am  satisfied  that  the  true  rule  and  the  only  safe  one  is  that 
laid  down  by  Bronson,  J.,  in  The  People  v.  Hulse,  that  a  party 
can  only  give  evidence  of  the  good  character  of  his  witness 
when  impeaching  witnesses  have  first  been  called  in,  on  the 
other  side. 

The  judgment  of  the  Columbia  Oyer  and  ferminer  irrfct 
therefore  be  affirmed.(a) 

Justice  Wright  dissented. 

(a)  The  judgment  in  this  case  was  affirmed  by  the  Court  of  Appeals.  (3 
StUen  R.  378.) 


NEW  YORK,  DECEMBER,  1851.  317 


SUPREME  COURT.     New  York  General  Term,  December.  1851 
Edmonds,  Mitchell  and  King,  Justices. 

EDWARD  SMITH  plaintiff  in  error  vs.  THE  PEOPLE  dePts  in  error. 

•Vhere,  on  an  indictment  for  perjury  in  having  sworn  falsely  as  to  the  ability 
of  the  defendant  to  become  bail  for  a  prisoner  charged  with  crime,  the  in- 
dictment charged  that  the  perjury  was  committed  upon  an  examination  had 
after  he  had  been  previously  sworn  to  make  true  answers  to  such  questions 
as  should  be  put  to  him,  touching  his  qualifications  and  competency  to  be 
and  become  bail,  &c.,  and  it  appeared  on  the  trial,  that  after  the  answers  of 
the  defendant  to  certain  interrogatories  had  been  taken  down  in  writing,  an 
oath  was  administered  to  him,  "  that  the  answers  to  the  forgoing  interroga- 
tories by  him  subscribed  are  each  and  every  of  them  true,"  it  was  held 
a  material  variance  and  that  the  proof  did  not  support  the  indictment. 

Ind  where  the  indictment  charged  that  the  perjury  was  committed  on  the  de- 
fendant's offer  to  become  bail  for  one  Thompson  committed  on  McDonald's 
complaint  in  default  of  bail  for  $500.  and  the  evidence  showed  the  perjury 
to  have  been  committed  on  defendant's  examination  as  bail  for  Thompson 
committed  on  the  complaint  of  Sayre  and  others  in  default  of  $3000  bail, 
it  was  also  held  to  be  a  material  variance  and  that  the  proof  did  not  support 
the  indictment. 

The  defendant  in  error  was  convicted  of  perjury  at  the  Ne\v 
York  General  Sessions,  on  the  19th  October,  1849,  and  sen- 
tenced to  the  state  prison  for  five  years  and  four  months. 

The  indictment  stated  that  on  the  7th  day  of  July,  1849,  one 
Samuel  Thompson  was  in  due  form  of  law  charged  upon  the 
oath  of  Hugh  McDonald,  before  James  McGrath,  one  of  the 
police  justices  of  the  city  of  New  York,  with  the  crime  of  lar- 
ceny, &c.,  &c.,  upon  which  said  charge  the  said  Samuel 
Thompson  was  in  due  form  of  law  committed  by  said  justice  to 
the  keeper  of  the  city  prison,  by  him  to  be  safely  kept  until  he 
should  find  surety  in  the  sum  of  $500,  to  answer  sa  d  complaint 
or  be  thence  delivered  by  due  course  of  law. 

That  on  the  same  day  the  said  Samuel  Thompson  was  com- 
mitted by  said  justice  to  the  custody  of  the  keeper  of  the  city 
prison  upon  divers  charges  of  felony,  to  be  safely  kept  by  him 
the  said  keeper,  until  he  should  be  thence  delivered  by  due 
course  of  law,  and  the  said  keeper  of  the  city  prison  did  then 


DECISIONS  IN  CRIMINAL  CASES. 


Smith  r.  The  People. 


aad  there  receive  and  take  said  Samuel  Thompson  in  the  city 
prison  aforesaid  by  virtue  of  the  commitments  aforesaid. 

That  on  the  28th  day  of  May,  1849,  Edwin  Smith  came  in 
his  own  proper  person  before  said  justice,  and  then  and  there 
offered  himself  to  be  and  become  the  bail  of  said  Thompson, 
and  that  be,  said  Thompson,  should  personally  appear  at  the 
next  court  of  general  sessions,  &c.,  &c.,  to  answer  said  charges, 
&c.  And  thereupon  the  said  Edward  Smith  was  in  due  man- 
ner sworn  by  the  said  James  McGrath,  police  justice,  as  afore- 
said, to  make  true  answers  to  such  questions  as  should  be  put  to 
him  touching  his  qualifications  and  competency  to  be  and 
become  bail  for  the  said  Thompson,  he,  the  said  McGrath,  hav- 
ing sufficient  and  competent  power  and  authority  to  administer 
an  oath  to  the  said  Edward  Smith  in  that  behalf. 

That  it  then  and  there  became  necessary  and  material  for 
said  police  justice  to  know  what  sum  the  said  Edward  Smith 
was  worth  over  and  above  his  debts  and  liabilities,  and  of  what 
property  he,  said  Smith,  was  then  and  there  possessed. 

That  said  Edward  Smith  being  so  sworn  as  aforesaid,  did 
make  his  affidavit  in  writing,  and  did  before  the  said  McGrath, 
justice  as  aforesaid,  upon  his  oath  as  aforesaid,  he,  the  said  Mc- 
Grath, having  competent  authority  to  administer  an  oath,  &c., 
&c«,  feloniously,  falsely,  willfully,  &c.,  &c..  swear,  depose  and 
say  among  other  things  to  the  substance  and  effect  following: 
that  is  to  say,  that  he  (said  Smith  meaning),  was  worth  the 
sum  of  twenty  thousand  dollars,  &c.,  £c.,  stating  what  v7as 
sworn  to  and  negativing  the  truth  of  his  averments. 

And  so  the  jurors,  &c.,  say  that  said  Edward  Smith,  on  the 
day,  &c.,  &c.,  upon  his  oath  aforesaid,  before  the  said  James 
McGrath,  justice  as  aforesaid,  &c.,  &c.,  did  commit  willful  and 
corrupt  perjury,  &c.,  &c. 

Upon  the  trial,  Sidney  H.  Stewart,  one  of  the  clerks  of  police 
in  the  city  of  New  York  was  called  as  a  witness,  who  proved 
that  on  the  19th  July,  1849,  Samuel  Thompson  was  committed 
on  five  charges  of  grand  larceny  and  one  of  petit  larceny,  and 
produced  the  commitments,  all  being  by  justice  McGrath,  one 
on  the  complaint  of  Lewis  H.  Sayre,  requiring  bail  in  $500; 


NEW  YORK,  DECEMBER,  1851. 


Smith  v.  The  People. 


{mother  on  the  complaint  of  William  H.  Norris,  requiring  bail 
in  $500;  another  on  the  complaint  of  John  Deraismes,  requir- 
ing bail  in  the  sum  of  $500;  another  on  the  complaint  of  Herd 
Mayor,  on  a  charge  of  petit  larceny,  requiring  bail  in  $200; 
another  on  the  complaint  of  John  J.  Sturges,  requiring  bail  in 
$500;  another  on  the  complaint  of  Hugh  C.  McDonald,  requir- 
ing bail  in  $500.  All  the  commitments  except  that  on  the 
complaint  of  Mayor  being  on  charges  of  grand  larceny  and 
bearing  date  July  19,  1849. 

The  witness  further  proved  that  the  defendant  Smith  offered 
himself  as  bail  for  Thompson  on  Saturday,  July  28,  1849. 

The  witness  then  produced  a  paper  entitled,  "  State  of  New 
York.  In  the  matter  of  the  people  of  the  state  of  New  York 
on  complaint  of  Lewis  A.  Sayre  and  others  against  Samuel 
Thompson,  alias  Samuel  Williams,  called  the  confidence  man," 
and  which  proceeded  as  follows:"  Interrogatories  and  an- 
swers to  be  administered  to  Edward  Smith  who  offers  himself 
as  surety  for  Samuel  Thompson  in  the  sum  of  three  thousand 
dollars,  the  said  Samuel  Thompson  being  charged  on  the  oath 
of  Lewis  A.  Sayre  with  grand  larceny.  First  interrogatory: 
What  is  your  name,  age,  place  of  residence  and  occupation? 
Answer  —  My  name  is  Edward  Smith,  &c.,  &c.,"  proceeding 
in  the  form  of  interrogatories  and  answers  and  signed  at  the  end 
by  the  defendant,  after  which  follows  the  jurat  as  follows:  City 
and  County  of  New  York,  ss.:  On  the  2Sth  day  of  July,  1849, 
the  above  named  Edward  Smith  personally  appeared  before  me, 
and  being  duly  sworn  deposes  and  says,  that  the  answers  to  the 
foregoing  interrogatories  by  him  subscribed  are  each  and  every 
one  of  them  true,  signed  James  McGrath,  police  justice. 

The  same  witness  further  proved  that  the  answers  to  the 
interrogatories  were  in  his  handwriting,  it  was  subscribed  by 
the  defendant  in  his  presence,  he  was  sworn  by  Justice  Mc- 
Grath and  the  signature  of  Justice  McGrath  was  to  the  jurat: 
the  execution  of  the  said  bail  bonds  was  deferred  till  the  next 
day  when  they  were  signed. 

The  district  attorney  then  offered  to  read  in  evidence  the 
several  commitments  so  produced  and  pioved. 


320  DECISIONS  IN  CRIMINAL  CASES. 

Smith  v.  The  People. 

The  counsel  for  the  prisoner  objected  that  the  indictment 
stated  that  Thompson  was  committed  upon  the  complaint  of 
Hugh  McDonald  and  that  no  other  commitment  but  that  one 
should  be  read. 

And  that  there  was  no  allegation  in  the  indictment  of  the 
said  Thompson,  having  been  committed  on  the  charges  men- 
tioned in  the  other  commitments  produced,  or  of  Smith's  having 
offered  himself  as  bail  for  Thompson  on  those  other  charges, 
and  no  foundation  was  laid  in  the  indictment  for  admitting 
these  other  commitments. 

The  court  allowed  all  the  commitments  to  be  read  in  evi- 
dence, to  which  the  defendant's  counsel  excepted. 

The  district  attorney  then  offered  to  read  in  evidence  the 
examination  proved  by  the  witness. 

This  was  objected  to  by  the  counsel  for  the  prisoner,  because 
it  was  not  taken  in  the  case  charged  in  the  indictment,  viz.: 
in  the  complaint  of  Hugh  McDonald,  but  in  the  matter  of  the 
complaint  of  Lewis  A.  Sayre  and  others,  wherein  no  charge  is 
made  in  the  indictment  of  the  defendant  having  committed 
perjury. 

2.  That  the  defendant  was  charged  with  having  committed 
perjury  upon  his  offer  to  become  bail  for  Thompson  committed 
upon  McDonald's  complaint  and  in  no  other  case. 

The  court  overruled  these  objections,  on  the  ground  that  the 
prosecution  had  proved  that  Thompson  had  been  committed  on 
the  complaint  of  McDonald,  and  also  for  divers  other  felonies 
as  charged  in  the  indictment,  and  that  the  defendant  had  offered 
himself  as  bail  in  all  the  cases. 

The  defendant's  counsel  then  stated  other  objections  to  read- 
ing the  examination: 

3.  That  it  was  not  taken  in  the  cases  mentioned  in  the  com- 
mitments produced. 

4.  It  was  taken  in  a  case  where  Lewis  A.  Sayre  and  others 
were  complainants  and  the  bail  was  $3000,  and  no  such  com- 
mitment was  produced. 

5.  It  was  taken    in  reference  to  a  complaint  of  Lewis  A. 
Sayre  alone,  where  the  bail  required  was  $3000,  and  the  aggre- 


NEW  YORK,  DECEMBER,  1851.  33 1 

Smith  v.  The  People. 

gate  of  the  bail  required  by  the  commitments  produced  was 
only  $2750. 

6.  The  examination  was  not  taken  conformably  to  statute, 
the  defendant  having  been  interrogated  in  a  sum  beyond  the 
amount  of  bail  required. 

7.  The  oath  was  extra  judicial,  having  been  administered  to 
answer  in  several  cases,  as  appears  by  the  indictment,  and  there 
should  have  been  a  separate  oath  in  each  case. 

8.  That  the  defendant   must   first   have  signed   the  bonds 
before  the  justice  had  any  authority  to  administer  an  oath  to  him. 

9.  That  the  examination  was  taken  by  the  clerk  not  the 
magistrate,  and  therefore  void. 

10.  The  magistrate  was  not  present  at  the  examination. 

11.  That  the  examination  was  not  taken  under  oath  at  the 
time  the  defendant  was  answering,  and  the  oath  having  been 
administered  after  the  defendant  had  answered  it  was  a  nullity. 

12.  That  the  examination  was  not  taken  upon  oath  to  make 
true  answers,  &c.,  as  alleged   in  the  indictment,  and  did  not 
support  the  indictment  in  that  respect.      \ 

The  court  overruled  the  objections  and  allowed  the  examina- 
tion to  be  read  in  evidence,  to  which  ruling  the  prisoner's 
counsel  duly  excepted. 

The  six  bail  bonds  executed  by  the  prisoner  were  then  read 
in  evidence,  sundry  objections  having  been  made  to  their  intro- 
duction. 

Justice  McGrath  having  been  called  as  a  witness  proved  that 
Mr.  Stewart,  the  clerk,  interrogated  the  witness,  he  the  justice 
being  part  of  the  time  present;  while  the  examination  took 
place  Mr.  Stewart  filled  up  the  interrogatories,  they  were  read 
over  to  the  defendant  in  the  witness's  presence,  and  witness 
administered  the  oath  to  him  after  he  had  signed  the  examination. 

A  bill  of  exceptions  having  been  made,  the  case  was  brought 
to  this  court  by  writ  of  error. 

F.  Byrne,  for  plaintiff  in  error. 

JV*  B.  Blunt  (district  attorney),  and 
J.  McKeon,  for  defendant  in  error. 
VOL.  I.  41 


£22  DECISIONS  IN  CRIMINAL  CASES. 

Smith  t.  The  People. 

By  the  Court,  KING,  J.  —  It  is  contended  on  behalf  of  the 
prisoner  that  there  was  a  variance  between  the  proof  offered 
against  him  on  the  trial  and  the  charge  against  him  in  the 
indictment  in  this. 

1.  That  the  indictment  charges  him  with  perjury  upon  an 
examination  where  he  had  been  previously  sworn  truly  to  an- 
swer questions,  which  charge  is  attempted  to  be  supported  by 
evidence  that  he  falsely  swore  that  the  contents  of  an  affidavit 
produced  by  him  were  true:  and 

2.  That  he  is  charged  with  perjury  upon   his  examination 
as  surety  for  Thompson,  committed   on   the  complaint  of  Mc- 
Donald in  default  of  $500,  bail,  which  charge  is  attempted  to 
be  supported  by  evidence  that  he  falsely  swore  upon  his  exa- 
mination as  surety  for  Thompson,  committed  on  complaint  of 
Sayre  in  default  of  $3000,  bail. 

Upon  examining  the  indictment,  it  will  be  perceived  that  it 
charges  that  the  plaintiff  in  error,  Smith,  was  in  due  manner 
sworn  to  make  true  answers  to  such  questions  as  should  be  put 
to  him,  touching  his  qualifications  and  competency  to  be  and 
become  bail  for  the  said  Samuel  Thompson;  that  being  so  sworn 
as  aforesaid,  he  made  his  affidavit  in  writing  and  did  upon  his 
oath  aforesaid  feloniously,  &c.,  depose  and  say. 

This  differs  from  the  usual  form,  where  it  is  intended  to 
allege  perjury  upon  what  is  usually  denominated  an  affidavit, 
where  the  oath  is  administered  after  the  affidavit  has  been 
written  and  signed  by  the  affiant,  and  is  to  the  effect  that  the 
contents  of  the  affidavit  so  subscribed  are  true. 

The  usual  allegation  being,  that  the  defendant  was  in  due 
form  of  law  sworn  and,  upon  his  oath  aforesaid,  did  depose,  &c., 
and  make  affidavit  in  writing;  or  that  the  said  defendant  did 
produce  to  the  said  court  a  certain  affidavit  in  writing  of  him, 
the  said  defendant,  and  then  and  there,  &c.,  £c.,  was  duly 
sworn  and  took  his  corporal  oath,  &c.,  &c.,  concerning  the 
truth  of  the  matters  contained  in  said  affidavit.  (Chit'y  Crim. 
L  319,  329.) 

Nor  is  the  charge  such  as  is  made  where  a  party  is  indicted 
for  false  swearing  upon  his  examination  in  justifying  bail,  as  in 


NEW  YORK,  DECEMBER,  1851.  323 

Smith  v.  The  People. 

ihose  cases  the  averment  that  the  party  made  affidavit  in  writ- 
ing is  omitted.  (Chitty  Cr.  L  331,  332.) 

The  charge  as  made  in  the  indictment  in  this  case  is  incon- 
sistent in  its  different  parts,  if  the  word  affidavit  is  to  be  taken 
in  the  usual  acceptation  of  that  term;  and  the  allegation 
that  he  made  an  affidavit  must  be  rejected  as  surplusage,  or,  if 
retained,  it  must  be  construed  by  the  terms  of  the  oath  previ- 
ously averred  to  have  been  taken,  as  meaning  deposition. 

In  support  of  this  charge,  which  imports  that  the  party  hav- 
ing been  previously  sworn,  did,  after  taking  the  oath  in  his 
examination  commit  perjury,  it  seems  to  me  improper  to  intro- 
duce evidence  that  the  party  was  sworn  to  the  truth  of  an  affi- 
davit presented  to  him,  no  examination  taking  place  subsequent 
to  the  oath  and  therefore  no  violation  of  the  oath  appearing, 
which  he  is  stated  to  have  taken. 

The  difference  between  examinations  and  depositions  is 
recognized  in  The  People  v.  Rest  ell  (3  Hill,  304.)  There,  a 
deposition  having  been  made  and  the  witness  sworn  to  its 
truth,  the  accused  party  was  afforded  the  opportunity  of  putting 
questions  to  the  witness,  but,  says  the  court,  had  she  done  so, 
and  had  the  witness  given  false  answers,  she  could  not  have 
been  convicted  of  perjury,  as  she  had  not  been  sworn  to  answer 
questions  at  all. 

It  seems  equally  obvious  that,  in  this  case,  the  defendant 
could  not  be  convicted  on  the  indictment  against  him,  without 
proving  that  he  was  sworn  to  make  true  answers  to  the  questions 
that  should  be  put  to  him,  and  did  answer  falsely  after  having 
been  sworn.  Such  evidence  was  not  produced;  no  proof  was 
offered  that  he  was  first  sworn  and  then  interrogated.  The 
only  oath  proved  was,  "  that  the  answers  to  the  foregoing  in- 
terrogatories by  him  subscribed  are  each  and  every  of  them 
true."  The  deposition  subscribed  by  the  defendant  being  in  the 
form  of  question  and  answer.  Another  question  is  presented, 
however,  under  this  indictment  Under  the  statute  of  23  Geo. 
II,  c.  11,  which  was  reenacted  by  our  revised  laws,  it  is  suffi- 
cient, in  cases  of  perjury,  to  set  forth  the  substance  of  the  of- 
fence, the  name  of  the  court,  a  simple  averment  of  the  court's 


324 


DECISIONS  IN  CRIMINAL  CASES. 


Smith  v.  The  People. 


authority  to  administer  the  oath,  and  proper  averments  of  the 
falsity  of  the  defendant's  assertions.  (2  Chitty's  Cr.  507;  Peo- 
ple v.  Phelps,  5  Wend.  9;  People  v.  Warner,  271.)  And  in  these 
latter  cases,  it  was  held  that  under  the  statute  of  jeofails  in 
criminal  cases,  contained  in  the  revised  statutes,  the  same 
rules  would  still  be  applicable  to  indictments  for  perjury  as  un- 
der the  revised  laws,  though  the  provisions  of  those  laws  were 
not  reenacted  in  the  revised  statutes. 

It  being  then  sufficient  to  charge  that  the  party  was  duly 
sworn,  can  the  allegation  of  what  he  was  sworn  to  do,  be  re- 
jected as  surplusage?  It  is  laid  down  that  every  fact  and  cir- 
cumstance which  is  not  a  necessary  ingredient  in  the  offence 
may  be  rejected  as  surplusage.  (Jlrchb.  Crim.  Plea.  42.)  But 
even  under  the  foregoing  statute,  if  the  prosecutor  chooses  to 
state  the  offence  with  greater  particularity  than  is  required,  he 
is  bound  by  the  statement  and  must  prove  it  as  laid.  (5  T.  R. 
311;  Rex  v.  Dovflin.') 

It  is,  however,  of  the  very  substance  of  the  offence,  it  seems 
to  me,  what  the  oath  was  which  was  administered  to  the  ac- 
cused, and  that  having  stated  that  a  particular  oath  was  ad- 
ministered, the  prosecutor  should  not  be  allowed  to  prove  one 
different  in  its  nature.  Although  it  is  equally  perjury  to  swear 
to  a  false  affidavit,  or  to  make  a  false  answer,  having  been 
sworn  to  make  true  answers,  it  is  not  proving  the  same  perjury; 
and  the  one  offence  only  being  charged,  it  seems  at  variance 
with  the  rules  upon  which  indictments  are  framed  and  supported 
by  evidence,  to  permit  the  charge'  to  be  thus  modified  to 
suit  the  evidence  as  it  may  appear.  The  indictment  only 
charges  perjury  upon  an  examination,  the  accused  having  been 
previously  sworn.  The  subsequent  averment  that  the  accused 
upon  such  oath  made  his  affidavit  in  writing  is  repugnant  to 
the  preceding  statement,  and  though  the  latter  averment  may 
be  rejected  as  surplusage,  I  do  not  think  the  former  can. 

It  is,  secondly,  urged  on  behalf  of  the  plaintiff  in  error,  that 
the  proof  varied  from  the  charge  in  this,  that  the  charge  was 
of  perjury  upon  occasion  of  the  prisoner's  offer  to  become  bail 
tor  Thompson  committed  on  McDonald's  complaint  in  default 


NEW  YORK,  DECEMBER,  1851.  335 

Smith  v.  The  People. 

of  $500  bail.  The  evidence  was  of  perjury  committed  upon 
his  examination  as  bail  for  Thompson  committed  on  the  com- 
plaint of  Sayre  and  others  in  default  of  $3000  bail. 

The  indictment  states  that  Thompson  was  committed  upon 
McDonald's  complaint  in  default  of  $500  bail. 

That  he  was  committed  by  McGrath  upon  divers  charges  of 
felony  (no  averment  being  made  that  the  amount  of  bail  on 
these  charges  was  fixed,  or  that  the  committing  magistrate 
could  bail  in  those  cases). 

That  Smith  offered  himself  as  bail  that  Thompson  should 
appear  at  the  next  court  of  general  sessions,  &c.,  &c.,  and 
thereupon  was  sworn,  McGrath  having  competent  authority  to 
administer  the  oath,  that  it  was  material  for  the  police  justice 
to  know  the  amount  of  Smith's  property,  he  swore  it  was  a 
Certain  amount,  which  assertion  of  his  was  false. 

It  is  contended  on  the  part  of  the  people,  that  the  occasion 
of  administering  the  oath  is  sufficiently  indicated  to  be  the 
offer  of  Smith  to  become  bail  for  Thompson  on  all  the  charges 
of  felony  against  him,  and  that  the  jurisdiction  of  the  officer 
having  been  averred  and  the  materiality  of  the  matters  deposed 
to  by  the  prisoner,  it  was  matter  of  evidence  and  not  matter  to 
be  pleaded,  how  the  evidence  of  the  defendant  was  material, 
and  upon  what  different  charges  of  felony  Thompson  was  com- 
mitted. 

It  is  first  to  be  observed,  that  although  at  the  trial  a  com- 
mitment of  Thompson  on  the  complaint  of  McDonald  was  pro- 
duced, the  only  oath  which  it  appeared  the  prisoner  took  was 
upon  an  affidavit  or  deposition  in  the  matter  of  the  people  of 
the  state  of  New  York  on  complaint  of  Lewis  A.  Sayre  and 
others  against  Samuel  Thomson.  If  the  title  of  the  deposition 
is  to  determine  in  what  proceeding  it  was  taken,  or  if  the  title 
is  to  be  disregarded  and  the  caption  of  the  deposition  is  to 
determine  the  proceeding  in  which  it  was  taken,  then  it  was 
upon  Smith's  offer  to  become  surety  in  $3000  for  Samuel 
Thomson,  charged  on  the  oath  of  Lewis  A.  Sayre  with  grand 
larceny. 

Nothing  in  the  deposition  indicated  that  the  prisoner  offered 


326 


DECISIONS  IN  CRIMINAL  CASES. 


Smith  p.  The  People. 


himself  as  bail  for  Thomson  on  the  charge  made  by  McDonald; 
and  therefore  the  indictment,  so  far  as  it  charges  that  to  have 
bee  i  the  occasion  on  which  he  committed  perjury,  is  unsustained 
by  evidence. 

But  it  is  insisted  that  it  is  also  stated  in  the  indictment,  that 
Thomson  was  committed  on  divers  charges  of  felony,  and  Smith 
offered  himself  as  bail  on  all  those  charges,  that  it  is  therefore 
competent  to  offer  evidence  of  other  commitments  than  the  one 
specifically  stated  in  the  indictment,  and  of  Smith's  deposition 
upon  his  offer  to  become  bail  for  Thompson  on  th  >se  charges. 
Admitting  this  to  be  so,  in  order  to  sustain  the  verdict  after 
conviction,  though  the  practice  of  making  such  general  charges 
is  not  to  be  commended  and  is  not  in  accordance  with  the  rules 
usually  governing  criminal  proceedings,  yet  even  then  the  evi- 
dence does  not  appear  admissible.  It  is  true  five  commitments, 
on  charges  of  felony  preferred  by  different  persons  against 
Thompson,  were  produced,  and  one  commitment  on  a  charge 
of  petit  larceny,  not,  according  to  the  revised  statutes,  a  felony ; 
but  among  these  commitments,  there  was  none  on  the  joint 
complaint  of  Lewis  A.  Sayre  and  others,  and  none  on  the  sole 
complaint  of  Lewis  A.  Sayre  in  which  the  bail  required  was  in 
the  sum  of  $300. 

The  title  of  the  deposition  is,  "  In  the  matter  of  The  People 
of  the  state  of  New  York  on  the  complaint  of  Lewis  A.  Sayre 
and  others."  This,  according  to  usual  acceptation,  would  mean 
the  joint  complaint  of  Lewis  A.  Sayre  and  others,  and  would 
indicate  but  one  complaint.  Rejecting  the  averment  on  whose 
complaint  the  people  proceeded  against  Thompson,  the  caption 
of  the  deposition  shows  it  to  have  been  taken  in  a  case  where 
Lewis  A.  Sayre  alone  complained  and  the  bail  offered  was 
$3000.  Upon  the  commitment  proved  on  Sayre's  complaint, 
the  bail  required  was  $500  only. 

To  conform  the  evidence  to  the  charge  contained  in  t'.e 
indictment  in  all  its  latitude,  we  must  change  the  title  of  the 
deposition  so  that  it  shall  read,  "  In  the  matter  of  the  People 
on  the  complaints  of  Sayre  and  others  against  Thompson," 
we  must  change  the  caption  so  as  to  read,  "  Interrogatories  to 


CHENANGO,  JANUARY,  1852.  31,7 

The  People  v.  Shaw. 

» 

be  administered  to  Smith  who  offers  himself  as  surety  for 
Thompson  in  the  sum  of  $2500  (the  aggregate  amount  of  bail 
required  on  all  the  commitments  for  felony  produced),  charged 
on  the  oaths  of  Lewis  A.  Sayre  and  others  with  divers  grand 
larcenies;"  and  we  must  omit  the  commitment  of  Thompson  for 
petit  larceny,  which  increasing  the  amount  of  bail  so  far  in- 
creased the  materiality  of  Smith's  answers  as  to  his  property. 
As  the  proof  now  stands,  it  seems  to  me  not  to  support  any 
charge  in  the  indictment. 

The  result  is,  that  the  evidence  on  the  trial  varying  from  the 
charge  in  the  indictment,  the  prisoner  has  been  wrongfully 
convicted  and  is  entitled  to  a  new  trial.  The  judgment  in  the 
court  below  must  therefore  be  reversed,  and  a  new  trial  ordered. 

Judgment  reversed. 


SUPREME  COURT.      Chenango  General  Term,   January,  1852. 
Mason,  Shankland  and  Gray,  Justices. 

THE  PEOPLE  vs.  GEORGE  I.  SHAW. 

An  indictment  under  the  Revised  Statutes  charging  the  committing  of  au 
assault  and  battery  with  a  deadly  weapon,  with  the  intent  to  kill,  is  sns« 
tained  by  proof  of  having  done  the  act  with  intent  to  commit  any  felonious 
homicide:  it  is  not  necessary  to  prove  an  intent  to  murder. 

The  prisoner  was  tried  at  the  Chenango  Oyer  and  Terminer 
in  October,  1851,  before  Mr.  Justice  Shankland,  and  the  justices 
of  the  sessions,  on  an  indictment  charging  the  committing  of 
an  assault  and  battery  on  Isaac  Williams,  with  an  axe,  with  au 
intent  to  kill  him.  $ 

At  the  close  of  the  testimony,  the  prisoner's  counsel  asked 
the  court  to  charge  the  jury  that  the  intent  to  kill  must  be 
proved  in  che  same  manner  it  would  need  to  be  proved,  to  con- 
stitute the  crime  of  murder,  if  the  intent  had  been  carried  into 
effect;  and  that  a  severe  assault  and  battery,  committed  in  the 
heat  of  passion,  witl  out  an  intent  to  kill,  and  where,  if  the 


328 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Shaw. 


person  assaulted  had  died,  the  offence  would  have  only  been 
manslaughter,  would  not  be  sufficient  to  convict  under  the  in- 
dictment of  an  assault  and  battery  with  intent  to  kill.  The 
court  refused  so  to  charge,  except  as  modified  in  the  charge 
given,  and  the  prisoner's  counsel  excepted. 

The  court  then  charged  the  jury,  that  the  prisoner,  under  the 
indictment,  should  be  convicted  of  an  assault  and  battery  with 
intent  to  kill;  if  the  assault  and  battery  were  made  under  such 
circumstances  that,  had  the  person  assaulted  been  killed,  the 
offence  would  have  been  either  murder  or  manslaughter  in  any 
of  the  various  degrees  of  manslaughter,  and  that  the  prisoner 
could  not  be  convicted  on  the  main  charge,  if  he  had  no  intent 
to  kill,  or  if  he  did  the  act  under  the  belief  that  it  was  neces- 
sary in  self  defence;  to  which  charge  the  prisoner's  counsel 
also  excepted. 

The  jury  found  the  prisoner  guilty  of  an  assault  and  battery 
with  an  intent  to  kill,  and  on  bill  of  exceptions  made,  the  cause 
was  brought  before  the  supreme  court  by  certiorari. 

Henry  A.  Clark,  for  the  defendant,  argued  that  the  word 
•"  kill "  in  §  36,  2  R.  S.  665,  has  the  same  meaning  as  "  mur- 
der" in  the  previous  statute  of  this  state.  (1  R.  L.  of  1813, 
409,  §9,)  and  in  the  English  statute,  citing  1  Russ.  on  C.;  550: 
Roscoe  Cr.  Ev.  653,785,775;  BarbourCr.  L.  80,  86;  Wharton's 
Jim.  L.  316;  1  City  Hall  Rec.  316;  5  id.  73. 

Dwight  H.  Clarke  (Dist.  Att'y),  for  the  People,  insisted  that 
it  was  sufficient  to  prove  such  an  intent  to  kill,  that  had  death 
ensued,  the  killing  would  have  come  under  any  of  the  degrees 
of  felonious  homicide.  That  the  change  of  the  word  "  murder" 
to  the  word  "  kill "  in  the  statute,  showed  an  intention  to.  ex- 
tend the  application  and  scope  of  the  statute.  That  all  the 
decisions  cited  were  made  under  the  statute  before  its  altera- 
tion, and  where  an  intent  to  murder  was  in  terms  required  to 
convict,  that  there  were  some  cases  in  which  an  intent  to  take 
life  was  requisite  to  convict  of  manslaughter,  though  generally 
it  was  otherwise. 


COLUMBIA,  JANUARY,  1852.  339 

The  People  v.  Smith. 

The  supreme  court  affirmed  the  proceedings  at  the  Oyer  and 
Terminer,  and  remitted  the  cause  that  sentence  might  be  pro- 
nounced in  pursuance  of  the  finding  of  the  jury. 


COLUMBIA  OYER  AND  TERMINER.  January,  1852.  Before  Parker, 
Justice  of  the  Supreme  Court  and  the  Justices  of  the  Sessions. 

THE  PEOPLE  vs.  CHARLES  A.  SMITH. 

Under  a  plea  of  not  guilty,  a  defendant  can  not  avail  himself  of  the  fact  that 
he  has  been  indicted  by  a  wrong  name. 

Where,  in  an  indictment  for  burglary,  the  building  charged  to  have  been  en- 
tered was  laid  as  the  shop  of  William  S.  Amigh,  it  was  held  no  variance  that 
the  shop  was  used  in  the  business  of  one  Winters,  of  whom  Amigh  was  the 
agent,  it  appearing  that  Amigh  hired  and  paid  for  the  shop  and  that  it  was 
tinder  his  charge. 

In  an  indictment  for  larceny,  it  is  sufficient  if  the  goods  stolen  are  laid  as  the 
goods  and  chattels  of  the  bailee. 

Thus  where,  in  an  indictment  for  burglary  and  larceny,  the  property  stolen 
was  laid  as  the  goods  and  chattels  of  William  S.  Amigh,  and  it  appeared  in 
evidence  that  the  goods  stolen  belonged  to  one  Winters,  and  that  Amigh  had 
the  lawful  custody  of  them  from  Winters  with  authority  to  sell  them  and 
account  for  the  proceeds,  it  was  held  no  variance. 

The  prisoner  had  been  indicted  at  a  previous  term  of  the 
court  for  burglary  and  larceny. 

The  first  count  of  the  indictment  charged  as  follows:  "  The 
jurors  of  the  people  of  the  state  of  New  York  in  and  for  the 
body  of  the  county  of  Columbia,  on  their  oath  and  affirmation 
present,  that  on  the  ninth  day  of  May  one  thousand  eight  hund- 
red and  fifty,  at  the  city  of  Hudson,  in  the  County  of  Columbia 
aforesaid,  Charles  A.  Smith,  late  of  the  city  and  county  of  New 
York,  laborer,  the  shop  of  one  William  S.  Amigh,  in  which 
goods,  merchandise  and  valuable  things,  viz.,  segars  and  boxes 
were  there  kept  for  sale,  deposit  and  use,  situate  in  the  city  of 
Hudson  aforesaid,  feloniously  and  burglariously  did  break  and 
enter  with  intent  the  goods  and  chattels  of  the  said  William  S. 
Amigh,  in  the  said  shop,  then  and  there  being,  then  and  there 
VOL.  I.  42 


330 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  «.  Smith. 


feloniously  and  burglariously  to  steal,  take  and  car  -y  away,  and 
then  and  there  in  the  said  shop  ten  thousand  segars  of  the  value 
of  two  hundred  dollars  and  fifty  boxes  of  the  value  of  five 
dollars,  of  the  goods  and  chattels  of  the  said  William  S.  Araigh, 
in  the  said  shop  then  and  there  being  found,  then  and  there 
feloniously  and  burglariously  did  steal,  take  and  carry  away, 
against  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  of  the  people  of  the  state  of  New  York 
and  their  dignity." 

In  the  second  count,  the  place  alleged  to  be  burglariously 
entered  was  called  a  "  store;"  in  the  third  count,  a  "warehouse," 
and  in  the  fourth  count,  a  "  building." 

The  prisoner  having  pleaded  not  guilty,  the  cause  came  on 
to  trial. 

J.  C.  Newkirk  (District  Attorney),  for  the  people. 
Tfteo.  Miller,  for  defendant. 

William  H.  Amigh — Testified  that  he  was  a  segar  maker  by 
trade,  and  in  May,  1850,  was  in  the  employment  of  his  uncle, 
William  S.  Amigh,  who  had  a  shop  for  the  manufacture  of 
segars  in  Cherry  Alley,  in  the  city  of  Hudson.  That  said  shop 
was  broken  into  in  May,  1850,  when  William  S.  Amigh  was 
absent  in  the  city  of  New  York,  the  shop  being  left  in  the  charge 
of  the  witness.  The  witness  discovered  the  shop  had  been 
entered,  when  he  went  to  it  about  six  o'clock  in  the  morning; 
that  he  found  the  front  door  unhooked  and  unbarred,  and  on 
entering  discovered  a  box  of  segars  on  the  lower  floor  had  been 
opened  and  about  sixty  segars  taken  out  of  it;  and  on  going  up 
stairs  into  the  shop  and  another  room  kept  for  storing  segars, 
which  were  put  up  in  boxes,  he  discovered  that  at  least  fifty  or 
sixty  dollars  worth  had  been  taken  away  during  the  night;  that 
ten  or  fifteen  thousand  segars  which  had  been  there  two  or  three 
months  were  missing;  that  witness  had  been  in  the  shop  the  day 

before  and  discovered  at  once,  on  entering,  that  the  segars  were 
gone. 


COLUMBIA,  JANUARY,   1851.  33^ 

The  People  v.  Smith. 

Witness  further  stated  that  he  did  not  recollect  whether  he 
shut  up  the  shop  the  night  before,  hut  he  was  generally  the 
person  to  do  it;  that  sometimes  another  yourjg  man  working  in 
the  shop  shut  it  up  at  night. 

That  about  a  week  afterwards  he  saw  segars  that  he  thought 
to  be  the  same,  from  the  appearance  of  the  boxes  and  the  trim- 
mings, in  a  dry  goods  box  marked  "  T.  Dimmick,"  on  board 
the  steamboat  Columbia,  at  the  dock,  in  the  city  of  Hudson. 

Christopher  Turpin — Testified  that  he  was  a  tavern  keeper 
at  Bristol,  a  landing  place,  on  the  west  side  of  the  Hudson 
river,  and  a  few  miles  below  Hudson  That  before  sunrise  one 
morning  in  May,  1850,  the  prisoner  came  there  in  a  small  boat 
in  company  with  one  or  two  others  and  took  out  of  the  boat 
and  put  on  the  dock  a  dry  goods  box.  That  the  prisoner  came 
to  witness's  house  near  by  and  asked  witness  to  label  the  box, 
that  he  might  send  it  to  New  York.  That  witness  furnished 
prisoner  with  a.  card  and  hammer  and  small  tacks  and  told  him 
to  label  it.  That  prisoner  took  them  and  wrote  on  the  card  "G. 
&  G.  W.  Spencer,  New  York,  to  be  called  for."  The  card  was 
here  presented  to  and  identified  by  the  witness.  That  the  pri- 
soner nailed  the  card  on  the  dry  goods  box  and  requested  wit- 
ness to  put  the  box  on  board  the  Catskill  boat  for  New  York, 
if  it  landed,  and  if  not,  on  board  the  Hudson  down  boat  that 
evening.  Prisoner  then  went  away  in  the  small  boat.  Witness 
being  the  same  day  in  Hudson  heard  of  the  burglary  committed 
the  night  before,  and  returning  as  he  went  on  shore  put  the  box 
on  board  the  steamboat  Columbia,  Capt.  King,  with  the  card 
on  it.  That  very  soon  afterwards  he  telegraphed  Capt.  King 
to  Newburgh,  that  he  might  receive  the  message  before  reach- 
ing New  York.  That  witness  afterwards  saw  this  box  in  Mr. 
Amigh's  shop. 

Capt.  King,  of  the  steamboat  Columbia,  testified  to.  the  put- 
ting of  the  dry  goods  box  on  board  at  Bristol,  and  identified  the 
card  shown  him  as  being  then  on  the  box.  That  he  read  the 
telegraphic  communication  at  Newburgh,  and  that  on  reach 'ng 
New  York  some  one  (not  prisoner)  called  for  the  box,  bu'  he 
refused  to  let  it  go.  That  he  kept  the  box  and  brought  it  baok 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Smith. 


to  Hudson  and  delivered  it  to  Win.  S.  Amigh.  Was  present 
\\hen  it  was  opened.  It  contained  segars  in  boxes  and  candy  j 
that  the  cover  of  the  box  was  marked  with  paint  on  the  inside, 
''  T.  Dimmick,"  which  is  the  name  of  a  merchant  tailor  in 
Hudson. 

William  S.  Amigh — Identified  the  segars  and  boxes  as  being 
those  taken  from  his  shop.  That  there  were  about  15,000  se- 
gars, worth  nearly  $250.  That  the  segars  belonged  to  Mr. 
Winters,  who  lives  in  Albany.  That  witness  hired  the  shop  and 
purchased  the  material  and  manufactured  the  segars  in  the 
name  of  Mr.  Winters.  That  witness  sold  what  segars  he  man- 
ufactured for  Mr.  Winters.  That  witness  was  in  the  employ- 
ment of  Mr.  Winters,  and  received,  a  salary  for  his  services; 
that  he,  witness,  had  charge  of  the  segars,  but  had  no  interest 
in  them;  witness  was  merely  agent,  and  Winters  had  a  right  to 
take  the  possession  of  the  property  at  any  time.  Witness  said 
an  axe,  buck  and  saw,  in  the  lower  room  of  the  shop,  belonged 
to  him. 

The  prosecution  here  rested,  and  the  defence  called 

Elizabeth  Smith,  who  testified  that  she-  resided  in  Hudson; 
that  prisoner  was  her  son,  and  was  twenty-one  years  of  age. 

Prisoner's  counsel  then  offered  to  prove  that  prisoner's  name 
was  Alonzo  Smith  and  not  Charles  A.  Smith.  This  being  ob- 
jected to,  was  excluded,  the  court  holding  that  it  was  too  late 
to  set  up  such  a  defence  after  pleading  not  guilty. 

Some  evidence  was  then  given  by  the  witness  with  a  view  to 
show  an  alibi. 

The  prisoner's  counsel  then  asked  the  court  to  decide  that 
there  was  a  variance  between  the  indictment  and  the  proof; 
that  the  proof  would  not  sustain  the  allegation  in  the  indict- 
ment that  it  was  the  shop  of  William  S.  Amigh,  nor  the  alle- 
gation that  the  property  stolen  was  the  goods  and  chattels  of 
William  S.  Amigh. 

The  district  attorney  contended  that  the  proof  was  sufficient, 
citing  Wharton's  Am.  Cr.  Lnw,  362,  404,  ani  cases  therein 
referred  to;  Arch.  Cr.  PI.  212;  Reg  v.  Bird,  Car.  fy  Payne, 
44. 


COLUMBIA,  SEPTEMBER,  1851.  333 


The  People  v.  Alger. 


The  court  decided  that  there  was  no  variance;  that  if  the 
shop  was  in  the  custody  and  charge  of  Amigh,  it  was  sufficient 
to  support  the  allegation  in  the  indictment;  that  it  appeared 
the  shop  was  hired  and  paid  for  by  Amigh  and  in  his  charge. 

As  to  the  segars  and  segar  boxes,  the  court  decided  that  it 
was  sufficient  to  support  the  indictment  that  Amigh  had  the 
lawful  custody  of  them  and  authority  to  sell  them  and  account 
for  them  to  Winters;  that  it  was  suffieient  if  goods  stolen  \\ere 
laid  as  the  property  of  the  bailee. 

The  jury  found  the  prisoner  guilty  of  grand  larceny,  and  he 
was  sentenced  to  imprisonment  in  the  state  prison  at  Sing  Sing, 
for  the  term  of  two  years  and  three  months. 


COLUMBIA  OYER  AND  TERMINER.  September,  1851.  Before 
Johnson,  Justice  of  the  Supreme  Court  and  the  Justices  of 
the  Sessions. 

THE  PEOPLE  vs.  ALGER. 

To  an  indictment  for  the  seduction  of  an  unmarried  female,  under  the  act  of 
1848,  the  defendant  interposed  a  special  plea,  alleging  that  at  the  time  of 
the  committing  the  acts  charged,  the  defendant  was,  and  for  five  years  previous 
thereto  had  been,  a  married  man.  having  a  living  wife  and  family,  with 
which  wife  and  family  he  was  then  living,  all  of  which  at  the  time  of  the 
alleged  promise  and  seduction  was  well  known  to  the  said  female;  on  de- 
murrer to  such  special  plea,  the  facts  thus  set  up  were  held  to  constitute  a 
good  defence  to  the  prosecution,  and  judgment  was  given  for  ihe  defendant. 

The  defendant  was  indicted  for  the  seduction  of  an  unmar- 
ried female,  under  the  act  of  1848,  entitled  "  An  act  to  punish 
seduction  as  a  crime." 

The  indictment  contained  three  counts.  The  first  count 
charged  that  the  defendant  under  promise  of  marriage  seduced 
and  had  illicit  intercourse  with  the  female,  she  being  unmar- 
ried and  of  previously  chaste  character,  following  the  language 
of  the  act,  without  setting  out  the  promise  or  averring  any  mu- 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Alger. 


tual  promise  on  her  part.  The  second  count  alleged  that  the 
defendant  promised  to  marry  the  female,  and  under  such  pro- 
mise of  marriage  seduced,  &c.,  as  in  the  first  count  without 
alleging  any  mutual  promise  on  her  part.  The  third  count  was 
substantially  like  the  first.  The  defendant  pleaded  not  guilty 
and  also  a  special  plea,  which  alleged  that  at  the  time  of  com 
mitting  the  acts  cnarged  in  the  indictment,  he  was,  and  for  five 
years  previous  thereto  had  been  a  married  man,  having  a  living 
wife  and  family,  with  which  wife  and  family  he  was  then  liv- 
ing, all  of  which  at  the  time  of  the  alleged  promise  and  seduc- 
tion was  wrell  known  to  the  said  female.  To  this  special  plea 
a  demurrer  was  interposed.  By  request  of  the  defendant's 
counsel  and  with  the  consent  of  the  counsel  for  the  people,  the 
defendant's  plea  of  not  guilty  was  stricken  out,  and  the  case 
was  argued  upon  the  demurrer  to  the  special  plea. 

J.  Gaul,  Jr.,  and 

H.  Hogeboorfif  for  the  people. 

E.  P.  Cowles,  and 

D.  D.  Field,  for  defendant. 

JOHNSON,  Justice,  delivered  the  opinion  of  the  court. 

The  special  plea  admits  the  matters  alleged  in  the  indict- 
ment to  be  true,  as  the  demurrer  does  those  set  up  in  the 
special  plea. 

If  the  indictment  can  strictly  be  regarded  as  setting  out  the 
existence  of  any  promise  of  marriage  as  a  matter  of  fact,  it 
must  be  held  to  import  an  absolute  unconditional  one,  as  con- 
tradistinguished from  a  promise  depending  upon  some  condition 
or  contingency. 

The  case  presented  by  the  pleadings  therefore,  is  that  of  a 
married  man  cohabiting  with  a  lawful  wife,  promising  unquali- 
fiedly and  unconditionally  to  marry  an  unmarried  female,  she 
knowing  and  understanding  his  situation,  and  under  such  a 
promise,  seducing  and  having  illicit  intercourse  with  her 

Is  this  the  kind  of  promise  of  marriage  contemplated  by  thf 
act  for  the  punishment  of  seduction  as  a  crime? 


COLUMBIA,  SEPTEMBER,  1851.  335 

The  People  v.  Alger. 

However  criminal  and  offensive  the  act  may  be  in  the  light 
of  religion  and  morality  it  is  the  statute  alone  which  gives  it  a 
criminal  character  in  the  eye  of  the  law.  It  is  to  be  observed 
that  the  act  is  not,  as  its  title  might  seem  to  import,  an  act  to 
punish  seduction  generally  as  a  crime,  but  only  when  it  is 
accomplished  under  certain  circumstances,  when  the  parties 
stand  in  a  particular  relation  to  each  other. 

Three  facts  must  concur  to  render  the  seduction  a  crime 
under  the  act. 

The  female  must  be  unmarried,  she  must  be,  or  must  at  all 
times  previously  have  been  of  chaste  character,  and  there  must 
be  a  subsisting  promise  of  marriage. 

If  all  these  concur,  then  the  seduction,  by  whatever  means 
accomplished,  is  a  crime  and  punishable  as  such,  but  in  no 
other  case  and  under  no  other  circumstances.  It  is  not  neces- 
sary that  the  promise  of  marriage  should  be  made  or  used  as 
the  inducement  to  the  consent  of  the  female,  it  is  enough  if  the 
parties  are  under  promise. 

The  framers  of  the  act  seern  to  have  assumed  that  under  such 
circumstances,  the  consent  of  the  female  mis:ht  be  much  more 

*  o 

readily  obtained.  That  she  confiding  in  the  promise  of  future 
marriage,  and  relying  upon  it,  would  be  more  liable  to  yield  to 
the  solicitations  and  temptations  of  the  man  under  this  obliga- 
tion to  her,  than  otherwise.  Hence  the  statute  was  confined  to 
this  particular  class  of  cases.  It  was  to  protect  females  really 
standing  in  such  a  relation  to  a  man,  and  confiding  in  his  pro- 
mise, from  the  employment  of  seductive  arts  against  them  by 
the  man,  and  to  punish  him  who,  under  such  circumstances, 
should  be  guilty  of  violating  and  betraying  and  disappointing 
that  confidence  to  the  disgrace  and  ruin  of  the  female,  and  the 
injury  and  scandal  of  society,  that  the  statute  was  chiefly  en- 
acted. 

But  must  the  promise  of  marriage  be  mutual  to  bring  the 
case  within  the  statute?  It  is  clear  that  to  constitute  any  valid 
promise  of  marriage  the  promises  must  be  mutual.  Unless  the 
obligation  be  reciprocal  it  is  a  nullity.  It  is  contended  by  the 
counsel  for  the  people,  that  the  statute  does  not  require  this, 


336 


DECISIONS  IN  CRIMINAI   CASES. 


The  People  v.  Alger. 


Jhat  if  the  man  is  under  promise  to  the  female  it  is  immaterial 
whether  she  has  ever  consented  or  ever  expects  to  marry  him 
or  not.  The  statute,  it  is  true,  taken  literally,  is  broad  enough 
to  admit  of  this  interpretation.  And  it  might  be  carried  still 
farther.  Because,  taken  literally,  it  is  not  necessary  that  the 
man  should  be  under  promise  of  marriage  to  the  woman  he 
seduces.  According  to  this,  every  man  who  was  under  pro- 
mise of  marriage  to  any  woman,  if  he  should  seduce  any  un- 
married female  would  fall  within  the  act.  But  this  obviously 
is  not  the  spirit  and  meaning  of  the  statute.  It  must  have  a 
reasonable  construction,  so  as  to  meet  the  mischief  it  was 
intended  to  remedy,  if  susceptible  of  it.  The  promise  must  not 
only  be  to  the  female  seduced,  but  there  must  be  a  correspond- 
ing one  from  her.  Until  the  obligation  is  mutual,  his  declara- 
tion that  he  would  marry  the  female,  or  was  willing  to  marry 
her,  is  a  mere  declaration,  or  offer,  and  no  promise,  in  any  legal 
sense. 

The  statute  is  to  be  taken  as  intending  a  promise  in  its  legal 
signification,  and  not  a  mere  declaration  or  offer  by  way  of 
temptation  or  allurement.  This  is  apparent  from  the  language 
employed  "  under  promise  of  marriage"  That  is,  after  having 
entered  into  and  while  under  the  engagement  to  marry. 

Again,  must  it  be  a  promise  of  a  lawful  marriage  to  bring 
the  case  within  the  act?  It  is  contended  on  behalf  of  the  peo- 
ple that  this  is  not  necessary.  It  may  be  that  in  a  case  where 
a  married  man,  represented  himself  to  the  female  as  unmarried, 
and  under  such  circumstances  under  promise  of  marriage  should 
seduce  her,  the  case  would  come  within  the  act,  although  the 
marriage,  should  it  be  consummated,  would  be  void.  I  have 
no  doubt  that  it  would,  if  the  female  was  ignorant  of  the  fact 
of  his  marriage  and  was  under  a  mutual  engagement  to  him. 
Even  a  marriage  under  such  circumstances,  although  it  would 
be  void,  would  not  be  criminal  on  her  part. 

But  take  the  promise  presented  by  the  pleadings,  an  agree- 
ment between  a  married  man  and  an  unmarried  female  to  marry 
forthwith,  at  any  time,  without  reference  to  the  present  mar- 
riage of  the  man,  she  knowing  him  to  be  at  the  same  time  law- 


COLUMBIA,  SEPTEMBER,  1851.  337 

The  People  v.  Alger. 

fully  married.  Is  this  the  kind  of  promise  the  legislature  had 
in  view?  It  can  not  be.  It  was  an  undertaking  which  if  car- 
ried out  would  subject  both  parties  to  punishment  in  the  state 
prison.  The  law,  instead  of  upholding  it  as  a  marriage,  would 
treat  it  as  an  infamous  crime.  To  call  such  an  engagement  a 
promise  of  marriage  would  be  a  flagrant  perversion  of  all  legal 
sense  and  reasoning. 

The  promise  I  apprehend  required  by  the  act,  if  it  be  not  a 
promise  of  a  marriage  in  all  respects  legal  and  valid,  when  it 
shall  be  consummated  according  to  the  intention,  must  at  least 
be  such  a  promise  as  the  Jaw  would  presume  the  female,  from 
I  he  facts  within  her  knowledge,  to  regard,  and  rely  upon,  as  a 
valid  marriage.  Females  as  well  as  males  are  presumed  to 
know  the  law. 

It  is  therefore  impossible  to  hold  or  to  admit  from  the  facts 
here  presented,  that  this  female  regarded  this  as  any  promise 
of  marriage,  or  could  have  relied  upon  it  as  such.  The  law 
presumes  that  every  person  intends  the  necessary  and  natural 
consequences  of  his  or  her  acts  and  agreements. 

But  it  is  urged  that  this  may  have  been  a  conditional  pi»o- 
inise  on  the  part  of  the  defendant  to  marry  the  female  seduced, 
when  he  should  obtain  a  divorce  or  upon  the  death  of  his  wife. 
That  such  a  promise  would  be  void  as  against  public  policy  I 
have  no  doubt  whatever. 

But  it  is  sufficient  for  the  purposes  of  this  case  to  remark 
that  no  such  question  arises  here.  No  such  promise  could  be 
proved  under  this  indictment.  The  promise  set  out  is  absolute 
and  unqualified. 

The  facts  therefore  set  up  in  the  special  plea,  and  which  are  ad- 
mitted by  the  demurrer  to  be  (rue  in  my  judgment  take  the  seduc- 
tion entirely  out  of  the  statute,  however  much  they  may  deepen 
the  shades  of  its  moral  turpitude.  It  is  not  a  question  whether 
such  an  offence  as  here  stands  confessed  ought  to  be  punishable 
by  law,  but  whether  the  legislature  in  the  act  before  us  made 
it  so.  Courts  are  to  expound  and  administer  and  not  make 
laws.  I  am  inclined  to  the  opinion  that  a  mutual  promise  of 
marriage  should  be  alleged  in  the  indictment,  and  that  it  should 

VOL.  I.  43 


338  DECISIONS  IX  CRIMINAL  CASES. 

The  People,  v.  Warren. 

be  substantially  set  out,  so  that  the  court  can  see  that  it  is  a 
valid  promise.  The  promise  of  marriage  is  somewhat  in  the 
nature  of  a  condition  precedent  to  the  ex'^pnc*1  of  the  offence. 
It  is  clearly  matter  of  substance.  I  have  preierred,  however, 
placing  the  decision  in  this  case  upon  the  interpretation  of  the 
statute  rather  than  the  construction  of  the  pleadings. 

And  I  am  clearly  of  opinion  upon  the  substantial  facts 
admitted  that  no  offence  under  the  act  has  been  committed  by 
the  defendant. 

Judgment  for  the  defendant  on  the  demurrer. 


ALLEGANY  OYER  AND  TERMINER.     April,  1852.     Before  Marvin, 
Justice  of  the  Supreme  Court,  and  the  Justices  of  the  Sessions. 

THE  PEOPLE  vs.  ALBERT  WARREN. 

A  trial  and  acquittal,  on  an  indictment,  charging  the  defendant  with  having 
mixed  arsenic  with  flour,  and  with  having  caused  it  to  be  administered  to  one 
Louisa  Loveland,  with  intent  to  kill  and  slay  her,  are  no  bar  to  a  subsequent 
indictment,  charging  the  same  defendant  with  the  same  act  in  mixing  the 
arsenic,  and  causing  it  to  be  administered  to  one  William  P.  Loveland,  with 
intent  to  kill  and  slay  him. 

The  indictment  charged  the  mixing  of  poison,  arsenic,  with 
flour  and  causing  and  procuring  it  to  be  administered  to  one 
William  P.  Loveland,  with  intent  to  kill  and  slay  him.  It  con- 
tained several  counts. 

The  defendant  pleaded  in  bar  that  he  was  .arraigned  and  tried 
in  August,  1851,  upon  another  indictment  charging  him  with 
the  same  identical  acts,  that  is,  the  mixing  the  poison  with  the 
flour,  and  causing  and  procuring  it  to  be  administered  to  one 
Louisa  Loveland,  with  intent  to  kill  and  slay  her,  and  that  upon 
such  trial  he  was  acquitted.  The  people  demurred  to  the  plea. 

J3.  L.  Davison  (Dist.  Att'y),  for  the  People. 
Hawley  fy  Grover,  for  defendant 


ALLEGANY,  APRIL,   1852.  339 

The  People  v.  Warren. 

MARVIN,  Presiding  Justice  The  demurrer  is  well  taken. 
The  former  trial  and  acquittal  are  not  a  bar  to  the  present  in- 
dictment. The  two  indictments  are  not  for  the  same  identical 
act  and  crime.  (4  Black.  Com.  346;  1  Russ.  on  Cr.  829,  836.) 
The  act  of  mixing  the  poison  with  the  flour,  and  furnishing  it 
to  the  persons  who  subsequently  used  it  and  partook  of  it,  is 
the  same  act  of  the  defendant  in  the  present  as  in  the  former 
case,  and  if  we  assume  that  the  defendant  by  the  same  single 
act  administered  or  caused  and  procured  the  poison  to  be  ad- 
ministered to  the  two  persons,  the  intent  charged  in  the  present 
case  is  not  the  same  intent  charged  in  the  former  indictment; 
there  it  was  to  kill  Louisa,  here  to  kill  William. 

The  intent  in  these  cases  is  the  material  constituent  of  the 
crime.  Though  the  acts  may  have  been  the  same,  the  crimes, 
as  charaterized  by  the  intent,  are  different. 

Upon  the  trial  of  the  former  indictment,  the  defendant  could 
not  have  been  convicted  of  the  crime  charged  in  the  present 
indictment,  though  the  jury  should  have  been  satisfied  that  the 
defendant  administered  the  poison  with  intent  to  kill  William 
P.  Loveland,  and  that  is  the  test  ^whether  a  former  acquittal  or 
conviction  is  a  bar.  (Rex  v.  Vandercomb,  2  Leach,  708;  cited 
in  1  Russ.  on  Cr.  831;  Arch.  Cr.  Plea.  87;  1  Ch.  Cr.  L.  452; 
Commonwealth  v.  Raby,  12  Pick.  496.) 

The  plea  is  overruled. 

NOTE. — Sec  Burns  et  al  v.  The  People,  page  182.  ,,  . 


10 


DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     Albany  General  Term,  May,  1852      //o?r&>, 
Parker  and  Wright,  Justices. 

THE  PEOPLE  vs.  CHARLES  QUIN. 

In  charging  a  jury,  an  expression  of  opinion  by  the  judge  as  to  trie  effect  of 
the  evidence,  leaving  the  jury  to  decide  the  question  notwithstanding  such 
expression  does  not  furnish  a  valid  ground  of  exception:  aliter.  if  the  lan- 
guage, which  is  the  subject  of  exception,  amounts  to  an  instruct  ion  as  to  the 
law  applicable  to  the  evidence  in  the  case 

Where  the  question,  on  the  trial,  was  whether  the  prisoner  was  guilty  of 
murder  or  manslaughter,  and  the  presiding  judge,  in  his  charge  to  the  jury, 
after  commenting  on  the  evidence  for  the  prosecution,  said.  "  Now,  gentlemen, 
if  you  believe  this  evidence,  and  believe  that  the  crime  was  committed  by  the 
defendant,  under  the  circumstances  as  given  to  you  by  these  witnesses,  I  see 
no  ground  to  warrant  you  in  finding  the  defendant  guilty  of  manslaughter, 
but  in  my  judgment  he  is  then  guilty  of  murder,"  it  was  held  to  amount  to 
an  instruction  upon  a  conclusion  of  law:  and  the  case  properly  presenting 
questions  of  fact  to  be  passed  upon  by  the  jury,  vi/.,  whether  the  killing  was 
by  "  premeditated  design  to  effect  death,"  or  in  the  "  heat  of  passion,"  fyc., 
the  charge  was  held  to  be  erroneous  and  a  new  trial  was  awarded. 

Indictment  for  the  murder  of  Michael  Gleason.  The  defend- 
ant having  pleaded  not  guilty,  the  trial  was  held  at  the  Rens- 
selaer  Oyer  and  Terminer,  in  November,  1851,  before  Mr.  Jus- 
lice  Watson  and  his  associates.  The  alleged  crime  was  com- 
mitted at  the  house  of  Harry  Thompson,  in  the  city  of  Troy,  on 
the  night  of  the  9th  of  January,  1851.  There  was  a  dance 
there  that  night,  at  which  Gleason  and  the  defendant  were 
present.  During  the  evening  they  had  a  dispute  in  relation  to 
a  tobacco  box,  which  the  defendant  alleged  he  had  lost. 

Michael  McD$rmott,  a  witness  for  the  prosecution,  testified 
that  Gleason  as'ked  the  defendant  if  he  said  he  had  stolen  his 
tobacco  box;  that  defendant  said  "no;  he  did  not  know  that  he 
had  taken  it  in  particular,  but  he  had  lost  it  in  the  house,  and 
still  he  might  be  mistaken  and  have  left  it  home  in  his  over- 
coat pocket;  that  Gleason  said  if  he  told  him  he  took  it  he 
would  go  out  doors  and  fight  him  for  it;  that  defendant  said  he 
would  not  do  it,  as  Gleason  was  too  big  a  man  for  him,  and  then 
somebody  interfered.  This  took  place  in  the  dancing  room, 


ALBANY,  MAY,  1852.  34  j 


The  People  v.  Quin. 


and  soon  after  one  Gushing  asked  Gleason  to  go  with  him  tc 
the  bar  in  an  adjoining  room  and  drink  with  him.  McDermott 
further  testified,  that  they  had  been  in  the  bar  room  two  or 
three  minutes,  when  defendant  told  him  he  was  going  to  get  a 
slice  of  lemon;  that  soon  after  he  heard  a  scuffle  in  the  bar 
room  and  then  saw  the  defendant  and  Gleason  come  into  the 
dancing  room;  Gleason  shoved  in  the  defendant;  that  Gleason 
had  his  arms  around  him  and  shoved  him  to  about  the  middle 
of  the  floor  and  then  fell,  Gleason  on  the  top;  that  they  lay 
there  a  short  time  and  were  then  separated.  About  the  time 
they  fell  some  one  remarked  that  defendant  had  a  knife,  and 
Gleason  said, "  let  him  alone,  I  can  lick  him,  knife  and  all." 
The  witness  further  testified,  that  the  defendant,  after  the  knife 
had  been  taken  from  him,  said  to  William  Hunter  that  "  he 
would  take  that  man's  life  for  mere  nothing;  that  revenge  was* 
swpet,  and  he  had  got  it  and  was  satisfied. 

Paul  Kavanagh  and  William,  Hunter  gave  substantially  the 
same  account  of  what  occurred. 

John  Wickes  testified  that  he  was  tending  bar  at  the  time; 
that  Gleason  came  in  and  asked  the  defendant  if  he  had  said 
that  he  had  stolen  his  box;  that  defendant  said  he  did  not  ac- 
cuse him  of  stealing  the  box;  he  might  have  lost  it  or  left  it  in 
his  overcoat  pocket  at  home;  that  Gleason  said  he  was  no  man 
at  all,  but  a  d — d  bullhead,  and  if  he  thought  he  had  it,  he 
would  go  out  and  fight  him;  that  defendant  said  he  was  a  big- 
ger man  than  he  was,  and  wanted  to  know  what  he  wanted  to 
fight  him  for;  that  Hunter  then  jumped  up  and  said,  "No  fighting, 
boys,"  and  took  Gleason  out  into  the  dancing  room;  that  shortly 
after  defendant  followed;  that  they  were  out  a  few  minutes, 
when  Gushing  called  Gleason  in  to  drink;  they  were  just  going 
to  drink,  when  defendant  came  in;  that  he,  the  witness,  was 
just  cutting  a  lemon,  and  defendant  said,  "  Jack,  give  me  th( 
knife ;  I  want  a  slice  of  lemon."  That  he  drew  the  knife  through 
his  hand  and  came  to  Gleason  and  said, "  You  son  of  a  bitch, 
I've  got  you  now;"  that  he  caught  him  by  the  coat  collar  and 
jabbed  the  knife  into  him;  that  defendant  held  the  knife  in  his 
right  hand,  and  as  he  was  drawing  it  back  to  make  another 


342  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Quin. 

stab  the  witness  caught  it;   that  Gleason  then  rushed  him  out 
into  the  other  room. 

Several  witnesses  were  examined  on  behalf  of  the  prose- 
cution, but  their  testimony  did  not  materially  vary  the  case  as 
above  stated.  It  appeared  from  the  testimony  that  the  parties 
1  ad  been  drinking  freely  that  night,  and  that  the  affray  occurred 
about  two  o'clock  at  night.  Gleason  died  of  the  wound  he  re- 
ceived about  eight  days  after.  The  presiding  judge,  in  his 
charge  to  the  jury,  stated  that  the  theory  of  the  defence  was, 
that  the  defendant,  if  guilty  at  all,  was  only  guilty  of  man- 
slaughter. That  the  theory  of  the  prosecution  was,  that  the 
defendant  was  guilty  of  premeditated  murder,  and  after  com- 
menting upon  the  evidence  relied  upon  by  the  prosecution  to 
sustain  their  theory,  he  added:  "Now7,  gentlemen,  if  you  be- 
lieve this  evidence,  and  believe  that  the  crime  was  committed 
by  the  defendant,  under  the  circumstances  as  given  to  you  by 
these  witnesses,  /  then  see  no  ground  to  warrant  you  in  finding 
the  defendant  guilty  of  manslaughter,  but,  in  my  judgment,  he 
is  then  guilty  of  murder."  To  this  part  of  the  charge  the 
counsel  for  the  defendant  excepted.  The  jury  found  the  defend- 
ant guilty  of  murder.  A  bill  of  exceptions  having  been  made 
and  settled,  the  proceedings  were  removed  into  this  court  by  a 
writ  of  error. 

R.  W.  Peckham,  for  the  people. 
J.  Pie.rson,  for  the  defendant. 

By  the  Court,  HARRIS,  J. — The  question  which  the  learned 
judge  who  presided  at  the  trial  was  presenting  to  the  jury  at 
the  time  he  used  the  language  upon  which  tke  counsel  for  the 
defendant  relies  to  sustain  his  allegation  of  error,  was  whether 
the  defendant,  if  guilty  at  all,  was  guilty  of  murder  or  man- 
slaughter. Jf,  in  submitting  that  question  for  the  decision  of 
the  jury,  he  had  taken  occasion  to  express  his  own  opinion,  as 
to  the  effect  of  the  evidence,  leaving  them  to  decide  the  ques- 
tion, notwithstanding  such  expression,  it  would  not  have  fur- 


RENSSELAER,  MAY,   1852,  343 

The  People  v.  Quin, 

nished  a  valid  ground  of  exception.  Upon  a  motion  for  a  new 
trial  upon  a  case  it  might  be  otherwise,  but  such  an  expression 
of  opinion  does  not  of  itself  constitute  error.  It  becomes  im- 
portant, therefore,  to  determine  whether  the  language  which  is 
the  subject  of  this  exception  amounted  to  an  instruction  as  to 
the  law  applicable  to  the  evidence  in  the  case,  or  was  a  mere 
declaration  of  the  opinion  of  the  judge  upon  the  evidence.  On 
behalf  of  the  defendant  it  had  been  insisted  that  the  evidence 
warranted  the  jury  in  convicting  him  of  manslaughter  only, 
while,  on  the  other  hand,  the  counsel  for  the  prosecution  had 
insisted  that  the  evidence  required  a  conviction  for  murder. 
In  respect  to  these  opposing  "  theories,"  the  learned  judge 
having  very  properly  submitted  it  to  the  jury  to  determine 
whether  the  evidence  as  detailed  by  the  witnesses  for  the  pro- 
secution was  to  be  credited,  proceeded  to  say  that,  if  they 
should  believe  that  evidence,  he  could  see  no  ground  left  which 
would  warrant  them  in  finding  the  defendant  guilty  of  man- 
slaughter, but,  on  the  other  hand,  the  circumstances  of  the  case, 
if  believed,  established  a  case  of  murder.  It  may  not  have  been 
intended  that  the  jury  should  understand  that  they  had  no  right 
to  convict  the  defendant  of  manslaughter.  But  I  think  the 
language  may  well  be  so  construed.  Indeed,  I  think  it  most 
likely  that  the  jury  understand  from  the  charge  that,  if  they 
would  decide  according  to  the  law  applicable  to  the  case,  they 
must  either  convict  the  defendant  of  murder  or  wholly  acquit 
him.  The  language  is  emphatic  and  unqualified:  "  Under  the 
circumstances  as  given  you  by  the  witnesses  for  the  prosecution, 
I  see  no  ground  to  warrant  you  in  finding  the  defendant  guilty 
of  manslaughter."  Upon  such  a  charge,  the  jury  may  well 
have  supposed  that  a  verdict  of  manslaughter  would  have  been 
in  violatiom  of  law,  If  the  charge  was  such  that  it  might  be 
so  understood,  I  think  it  was  erroneous.  The  evidence  on  the 
part  of  the  prosecution  was  such  as  would,  undoubtedly,  have 
warranted  a  conviction  for  murder.  The  jury  might  well  have 
come  to  the  conclusion  that  the  fatal  blow  was  given  with  a 
premeditated  design  to  effect  death.  On  the  other  hand,  I  am 
not  prepared  to  say  .hat  the  jury  might  not  have  been  war- 


344  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Harriden. 

ranted  in  finding  that  the  act  was  committed  in  the  heat  of 
passion.  If  so,  the  jury,  instead  of  being  told  that  there  was  no 
ground  upon  which  they  wrould  be  warranted  in  convicting  of 
manslaughter,  should  have  been  instructed  as  to  the  distinction 
between  murder  and  manslaughter,  and  left  to  convict  the  de- 
fendant of  the  one  crime  or  the  other,  as  they  should  find,  from 
the  evidence,  that  the  act  was  committed  with  a  premeditated 
design  to  effect  the  death  of  Gleason,  or  in  the  heat  of  passion. 
Regarding  that  portion  of  the  charge  which  has  been  inserted 
in  the  bill  of  exceptions  rather  as  an  instruction  upon  the  law 
applicable  to  the  facts  proved,  than  an  opinion  advisory  as  to 
the  effect  of  the  evidence,  I  am  inclined  to  think  the  charge 
had  the  effect,  not  intended  perhaps,  to  mislead  the  jury,  by 
inducing  them  to  dismiss  from  their  minds  the  consideration  of 
the  question  whether  their  verdict  should  be  murder  or  man- 
slaughter. For  this  reason,  I  am  of  opinion  that  the  judgment 
should  be  reversed  and  a  new  trial  ordered. 

Judgment  reversed. 


STEUBEN  OYER  AND  TERMINER.  May,  1852.  Before  T.  R. 
Strong,  Justice  of  the  Supreme  Court,  and  the  Justices  of 
the  Sessions. 

THE  PtorLE  vs.  JAMES  HARRIDEN. 

On  the  trial  of  an  indictment  for  incest,  charged  to  have  been  committed  by  a 
father  with  his  daughter,  the  declarations  of  the  defendant  are  competent  evi- 
dence upon  the  question  of  consanguinity. 

The  statute  in  such  case  is  only  applicable  to  cases  in  which  the  sexual  inter- 
course is  by  mutual  consent.  Where  it  is  accomplished  by  force  it  is  punishable 
only  as  rape. 

This  was  an  indictment  for  incest  with  a  daughter  of  the  de- 
fendant, founded  upon  the  statute  2  R.  S.  688,  §  12,  which 
provides  that  "Persons  being  within  the  degrees  of  consan- 
guinity within  which  marriages  are  declared  by  law  to  be 


STEUBEN,  MAY,   180-2. 


The  People  v.  Harriden. 


incestuous  and  void,  who  shall  intermarry  with  each  other,  or 
who  shall  commit  adultery  or  fornication  with  each  other,  shall, 
upon  conviction,  be  punished  by  imprisonment  in  a  state  prison 
for  a  term  not  exceeding  ten  years."  The  alleged  daughter 
testified  that  she  was  18  years  of  age,  that  the  defendant  and 
her  mother  had  from  the  earliest  recollection  of  the  witness 
lived  and  cohabited  together  as  husband  and  wife;  that  they 
had  ten  children;  and  that  the  defendant  had  always  recog- 
nized the  witness  as  his  daughter;  and  she  had  recognized  him 
as  her  father.  She  further  testified  that  the  defendant  harl 
sexual  intercourse  with  her  at  several  different  times;  and  her 
testimony  tended  to  prove  that  the  connections  were  without 
her  consent,  and  forcible  on  the  part  of  the  defendant.  An 
elder  sister  testified  that  the  defendant  and  her  mother  had 
lived  together  as  husband  and  wife  as  long  as  she  could  recol- 
lect, and  that  the  defendant  had  called  the  principal  witness 
his  child.  Similar  declarations  of  the  defendant  were  proved 
by  other  witnesses.  All  the  testimony,  in  regard  to  the  rela- 
tionship, was  received  under  objection  to  its  competency. 

t 

George  T.  Spencer,  for  the  defendant  presented  two  points. 
1st.  That  it  was  not  proved  the  defendant  was  the  father  of  the 
witness  who  was  alleged  to  be  his  daughter;  that  evidence  of 
a  marriage  in  fact  between  the  defendant  and  the  mother,  as  in 
case  of  an  indictment  for  bigamy,  was  necessary  in  order  to 
establish  the  relationship.  2d.  That  if  any  offence  was  proved, 
it  was  not  incest  but  rape. 

R.  L.  Brundage  (Dist.  Att'y),  and 
Wm.  Irvine,  for  the  people. 

The  court  decided  that  the  acts  and  declarations  of  the  de- 
fendant were  competent  evidence  upon  the  question  whether 
the  defendant  was  the  father  of  the  witness,  with  whom  it  was 
alleged  the  offence  was  committed,  but  that  it  belonged  to  the 
jury  to  judge  as  to  the  weight  due  to  the  evidence;  and  that 
they  must  be  satisfied  by  it  the  defendant  was  her  father,  or 

VOL.  L  44 


346  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t.  Harridan. 

they  would  not  be  warranted  in  finding  him  guilty.  See  2  R. 
S.  139,  orig.  §3,  declaring  marriages  between  such  relations 
as  are  therein  named  incestuous  and  absolutely  void,  and  that 
the  section  "  shall  extend  to  illegitimate  as  well  as  legitimate 
children  and  relations,"  also  Regina  v.  St.  Giles  in  the  Fields, 
11  Molphus  fy  Ellis,  JV.  S.  173,  191,  203,  244 j  2  Kent's 
Com.  4th  ed.  214.  But  if  proof  of  marriage  between  the  de- 
fendant and  his  reputed  wife  was  necessary,  whether  under  our 
law  allowing  marriage  to  be  contracted  by  a  present  agreement 
between  parties  without  any  formal  ceremony  the  rule  which 
has  prevailed  in  prosecution  for  bigamy,  and  a  few  other  cases, 
requiring  direct  evidence  of  the  marriage  ought  to  be  extended 
or  longer  adhered  to.  (See  Clayton  v.  Wardell,  4  Comstock, 
230  and  opinions  there  given.}  (a) 

In  respect  to  the  other  point  raised,  the  court  decided  that 
the  statute,  upon  which  the  indictment  was  founded,  applied 
only  to  oases  where  the  connection  was  by  mutual  consent; 
and  that  if  the  connections  between  the  defendant  and  his 
daughter  were  accomplished  by  force  used  by  the  defendant,  to 
such  an  extent  as  to  render  him  guilty  of  rape,  the  charge  of 
incest  was  not  sustained.  That  the  offence  of  rape  was  of  a 
higher  nature,  for  the  punishment  o"f  which  ample  provision 
had  been  made;  and  that  the  statute  in  relation  to  the  punish- 
ment of  the  incest  was  designed  to  embrace  only  cases  of  sex- 
ual intercourse  between  relations  within  the  degrees  referred  to 
in  it,  not  coming  within  the  statute  in  respect  to  the  crime  of 
rape. 

The  jury  rendered  a  verdict  of  guilty. 

(a)  See  The  People  t>.  Gahagan,  infra. 


NEW  YORK,   MAY,  1852.  347 


SUPREME  COURT      New  York  General  Term,  May,  1852.     Ed- 
wards, Mitchell  and  Roosevelt,  Justices. 

JAMES  SULLIVAN  pl'ff  in  error  vs.  THE  PEOPLE  def ' ts  in  errolr. 
JOSEPH  CLARK  pl'ff  in  error  vs.  THE  PEOPLE  def  ts  in  error. 

Under  the  Revised  Statutes  of  New  York,  declaring  the  killing  of  a  human 
being  to  be  murder,  when  done  from  a  '"  premeditated  design"  to  effect  the 
death  of  the  person  killed,  it  is  erroneous  to  charge  the  jury,  that  the  act 
would  be  murder,  if  the  intent  to  kill  was  formed  at  the  instant  of  striking 
the  fatal  blow,  (a) 

Premeditation,  as  well  as  design,  is  now  a  necessary  ingredient  in  making  out 
the  crime  of  murder,  under  the  first  clause  of  the  section  of  the  statute  de- 
fining that  offence. 

What  are  proper  considerations  on  an  application  for  an  allowance  of  a  writ  of 
error  and  a  stay  of  proceedings,  in  a  capital  case,  by  Edmonds,  J. 

These  cases  came  before  the  court  on  writs  of  error  from  the 
New  York  Oyer  and  Terminer,  where  there  had  been  convic- 
tions for  murder  in  both  cases,  Justice  Edmonds  presiding. 
The  facts  are  sufficiently  stated  in  the  opinion  of  the  court,  to 
present  the  questions  of  law  decided.  After  the  convictions  in 
the  Oyer  and  Terminer,  the  counsel  for  the  prisoners  made 
application  to  Justice  Edmonds,  for  a  stay  of  proceedings  and 
an  allowance  of  writs  of  error,  and  on  the  i9th  November, 
1851,  Justice  Edmonds  granted  the  application  and  delivered 
the  following  opinion: 

"  Upon  the  bill  of  exceptions  in  these  cases  presented  to  me 
this  day,  I  am  asked  to  allow  writs  of  error  with  a  stay  of  pro- 
ceedings upon  the  execution  of  the  sentences  pronounced. 

The  question  raised  by  the  bills  of  exception  is  a  grave  one 
It  involves  a  construction  of  the  revised  statutes,  and  has  never 
been  authoritatively  adjudged  by  our  highest  courts. 

It  is  this:  whether  the  intention  to  kill,  which  forms  an  ele- 
ment of  the  crime  of  murder  under  our  revised  statutes,  must  be 
a  design  previously  formed,  or  whether  it  is  enough  that  it  be 
formed  on  the  instant  the  homicide  is  perpetrated? 

(a)  Sed  vide  3  Selden  R.  385. 


348 


DECISIONS  IN  CR  MINAL  CASES. 


Sullivan  ».  The  People. 


The  revised  statutes  made  very  important  alterations  in  the 
preexisting  law  of  homicide. 

Before  their  enactment,  a  class  of  cases  were  held  to  be 
murder  where  there  was  manifestly  no  design  to  kill;  like  the 
case  of  the  schoolmaster,  who  whipped  his  pupil  so  that  he 
died,  or  that  of  the  chimney  sweeper,  who,  in  extricating  his 
boy  from  a  chimney,  did  it  so  cruelly  as  to  cause  his  death. 
The  law  implied  malice  aforethought,  or  an  intent  to  kill. 

On  the  other  hand,  there  was  a  class  of  cases,  where,  though 
there  was  an  intent  to  kill,  it  was  held  not  to  be  murder,  but 
manslaughter — such  as  sudden  affrays,  in  the  heat  of  passion, 
and  on  sufficient  provocation. 

The  revised  statutes  adopted  an  intention  to  kill,  as  the  chief 
line  of  demarkation  between  murder  and  manslaughter,  and  the 
first  class  of  cases  I  have  mentioned,  where  there  is  no  inten- 
tion to  kill,  have  been  regarded  as  mitigated  to  manslaughter, 
and  the  last  class  of  cases  as  aggravated  to  murder. 

In  the  case  of  The  People  v.  Jlustin,  I  held,  in  a  carefully 
considered  opinion,  that  in  all  cases  (except  one  class  which  is 
not  involved  in  these  cases  and  was  not  in  that),  there  must  be 
an  intention  to  kill  to  constitute  the  crime  of  murder,  and  that 
where  there  was  such  an  intention,  whether  formed  on  the 
instant  or  previously  entertained,  it  was  murder.  I  so  charged 
the  juries  in  the  cases  now  under  consideration. 

If  I  had  any  doubt  upon  the  question,  I  would  have  reserved 
it  for  the  consideration  of  my  brethren;  but  I  had  none,  be- 
cause I  could  find  in  the  statutes  no  resting  place  for  the  killing 
of  a  human  being,  with  an  intention  to  kill,  even  though  on  a 
sudden  impulse,  except  under  the  definition  of  murder.  The 
counsel  for  the  prisoners,  who  was  assigned  as  such  by  the 
court,  and  who  has  himself  occupied  a  prominent  position  in 
the  administration  of  criminal  justice,  entertains  doubts  of  the 
correctness  of  my  ruling,  and  desires  to  obtain  the  decision  of 
the  higher  courts. 

In  order  to  do  that  now,  the  execution  of  the  sentence  must 
be  stayed.  I  ought  not  to  refuse  it  unless  I  am  disposed  to 
give  my  decisions  a  finality  and  an,  authority  that  does  not 


NEW  YORK,  MAY,  1852.  349 

•    Sullivan  r.  The  People. 

properly  belong  to  them.  If  either  the  Supreme  Court  in  "bank, 
or  the  Court  of  Appeals,  should  differ  with  me  in  opinion,  the 
consequences  would  be  irremediable. 

As,  then,  the  question  involved  is  a  very  grave  one,  and  has 
never  yet  been  passed  upon  by  either  of  those  courts,  or  by 
any  tribunal,  higher  than  the  Oyer  and  Terminer,  and  as  it  is 
raised  very  fairly  and  definitely  in  these  cases,  it  seems  to  be 
one  that  ought  to  be  definitely  settled,  and  by  the  highest 
authority  in  the  state. 

The  same  question  which  was  argued  before  the  court  at  its 
last  term,  in  the  case  of  Carnal,  is  now  under  advisement,  and 
will  soon  be  determined. 

These  considerations  have  moved  me  to  allow  the  writs  of 
error,  and  to  order  the  proceedings  to  be  stayed  until  decision 
thereon." 

In  the  first  case, 

jR.  H.  Morris,  for  defendant. 

JV.  J5.  Blunt  (Dist.  Att'y),  for  the  people. 

In  the  second  case, 
John  McKeon,  and 
R.  H.  Morris,  for  defendant. 

JV.  B.  Blunt  (Dist.  Att'y),  for  the  people. 

MITCHELL,  J.  —  In  each  of  these  cases  the  plaintiff  in  error 
was  indicted  for  murder,  tried,  and  found  guilty.  In  each  case 
the  judge,  at  the  Oyer  and  Terminer,  charged  the  jury  that,  if 
they  believed  that  the  killing  was  produced  by  the  prisone., 
with  an  intention  to  kill,  though  that  intention  was  formed  at 
the  instant  of  striking  the  fatal  blow,  it  was  murder.  To  this 
charge  there  was  an  exception,  as  well  as  to  the  other  parts  of 
the  charge;  and  the  question  has  been  very  fully  and  ably 
argued,  whether  an  intention  to  kill  formed  at  the  instant  of 
striking  the  fatal  blow,  is  a  premeditated  design  to  kill, 


350  DECISIONS  IN  CRIMINAL  CASES. 

Sullivan  v.  The  People. 

within  the  meaning  of  the  revised  statutes.  The  revised  stat- 
utes declare  the  killing  of  a  human  being  to  be  murder  (except 
in  certain  cases,  not  necessary  here  to  notice),  first,  when  it  is 
perpetrated  from  a  premeditated  design  to  effect  the  death  of 
the  person  killed,  or  of  any  human  being  (2  R.  S.  657,  sec.  5); 
secondly,  when  it  is  perpetrated  by  an  act  imminently  danger- 
ous to  others,  and  evincing  a  depraved  mind,  regardless  of 
human  life,  although  without  any  such  design  against  any  par- 
ticular individual;  and  thirdly,  when  it  is  perpetrated  by  one 
engaged  in  the  commission  of  a  felony,  although  without  any 
design  to  effect  death.  The  revisers  say  in  their  note  to  this 
section,  that  the  great  principle  on  which  it  rests  is,  that,  to 
constitute  murder,  there  should  be  an  express  design  to  take 
life  (which  seems  to  be  the  first  case  provided  for),  or  such  cir- 
cumstances as  to  induce  a  very  strong  presumption  of  such 
design,  or  such  facts  occurring  in  a  transaction  as  would  ordi- 
narily lead  to  the  result  of  taking  life.  The  two  last  cases,  no 
doubt,  were  provided  for  in  the  second  and  third  subdivisions. 
They  add  that  this  section  conforms  substantially  to  the  law  of 
Pennsylvania.  They  also  state  that  there  was  nothing  so 
much  wanted  in  the  criminal  law  as  a  settled  line  of  distinction 
between  murder  and  manslaughter,  which  were  then  sb  nearly 
connected,  and  ran  into  each  other  so  much,  that  a  lamentable 
uncertainty  prevailed,  which  operated  as  well  to  screen  the 
guilty  as  to  expose  the  innocent;  and  that  the  first  step  to  such 
a  distinction  is  the  definition  of  murder.  It  is  evident,  there- 
fore, that  it  was  their  intention  to  use  language  which  should 
be  so  clear  as  to  remove  this  uncertainty,  and  to  make  it  unne- 
cessary to  examine  the  former  adjudications  on  the  subject 
For,  if  the  former  Jaw  was  to  be  retained,  and  the  former 
decisions  resorted  to  as  authority  as  to  what  the  present  law 
should  be,  all  the  old  uncertainty  must  still  remain.  The  same 
motives  must  have  influenced  the  legislature,  for  this  uncer- 
tainty was  but  faintly  portrayed  by  the  revisers,  as  any  one  will 
experience*  who  will  attempt  to  reconcile  the  old  decisions; 
and  Ihere  was  no  subject  which  needed  revision  more,  both  on 
that  account  and  on  account  of  its  vast  importance.  The  revi- 


NEW  YORK,  MAY,  1852.  35  ^ 

Sullivan  v.   The  People. 

sers  accordingly  abandoned  the  technical  phrase  which  was 
appropriated  to  the  description  of  the  motive  of  the  murderer 
—  malice  aforethought  —  and  which  had,  in  process  of  time, 
acquired  a  legal  meaning,  different  from  its  primitive  meaning, 
and  substituted  the  untechnical  words,  "  premeditated  design," 
that  a  law  in  which  the  whole  state  and  every  individual  in  the 
state  may  be  concerned,  might  be  understood  by  each,  in  the 
sense  which  every  man,  professional  or  not,  would,  on  the  first 
impression,  believe  it  was  intended  to  have.  Does  the  expres- 
sion "  premeditated  design,"  admit  of  the  meaning  given  to  it 
by  the  Oyer  and  Terminer?  Without  relying  on  the  definitions 
of  lexicographers,  we  may  safely  resort  to  the  illustrations 
which  they  have  given  of  the  use  of  words.  None  of  them 
give  a  single  illustration  of  the  word  to  meditate  in  which  the 
idea  of  a  considerable  space  of  time  is  not  contained  as  inter- 
vening during  the  operation  of  the  mind.  The  word  meditate 
comes  to  us  from  the  Latin,  and  perhaps  through  the  French. 
Ainsworth  has  collected  instances  of  its  use  in  those  Latin 
authors  whose  works  form  the  foundation  of  our  education. 
They  are,  to  forecast;  to  meditate  or  study  how  to  plead  a 
cause,  or  how  to  speak;  meditate  going  into  exile,  or  a  flight, 
or  snares  or  deceit  against  another,  or  punishment  against  a 
brother,  or  an  armed  expedition  into  India.  The  illustrations 
in  the  dictionary  of  the  French  Academy  are  —  to  meditate  a 
truth;  an  idea;  rules  of  eloquence;  an  enterprise;  a  project; 
the  ruin  of  another;  a  good  or  bad  action;  or  to  retreat  from 
the  world;  and  they  say  proverbially,  "  a  man  of  ready  wit 
comes  sometimes  to  as  happy  results  as  if  he  had  meditated," 
making  a  complete  contrast  between  meditation  and  the  hasty 
thought  which  in  the  same  instant  is  followed  by  action.  Their 
definition  of  meditation  makes  the  contrast  still  greater.  It  is 
"  an  operation  of  the  mind,  which  applies  itself  to  reach  the 
depths  of  any  subject  or  matter."  The  mind  which  seeks  to 
reach  the  depths  of  any  subject  that  is  worthy  of  reflection, 
must  be  long  occupied  before  its  wishes  can  be  gratified.  Can 
one  be  said  to  meditate  the  banishment  of  another,  or  snares, 
or  deceit,  or  the  punishment  of  another,  or  his  own  flight,  or 


352 


DECISIONS  IN  CRIMINAL  CASES. 


Sullivan  t>.  The  People. 


the  invasion  of  a  foreign  country,  if  he  does  not  allow  a  consi- 
derable interval  to  elapse  between  the  first  formation  of  the. 
design  and  its  execution?  Csesar  said  of  one  of  his  conquests, 
veni,  vidi,  vici;  and  all  understand  it  as  a  proud  boast,  that  as 
soon  as  he  reached  and  saw  the  enemy's  country  he  conquered 
it.  How  completely  would  he  have  reversed  this  meaning  if 
he  had  said — "  On  my  arrival  I  meditated  on  my  design,  and 
accomplished  it."  The  admission  that  he  had  meditated 
would  have  showed  that  there  were  difficulties  which  delayed 
him  and  required  some  management  before  they  could  be 
accomplished.  So,  to  turn  to  the  French  illustration,  can  one 
be  said  to  have  meditated  on  an  idea,  on  an  enterprise,  a  pro- 
ject, the  ruin  of  another,  or  a  good  or  bad  action,  who  per- 
formed the  action  at  the  very  moment  the  thought  was  formed? 
So,  when  "  meditations  on  death"  are  spoken  of,  do  men  mean 
the  thoughts  of  a  moment,  or  the  calm,  deliberate  reflections 
which  may  have  exercised  the  mind  for  hours  or  years,  or  even 
the  most  of  one's  life?  The  only  illustrations  given  by  Webster, 
correspond  with  these  One  is  from  Washington,  who  says, 
"  I  meditate  to  pass  the  remainder  of  my  life  in  a  state  of 
undisturbed  repose;"  and  the  other  from  the  book  which  is  in 
every  body's  hands  or  hearing,  and  is  one  of  the  best  sources 
of  pure  English  —  "  His  delight  is  in  the  law  of  the  Lord,  and 
in  his  law  doth  he  meditate  day  and  night."  (Psalm  I.)  These 
quotations  show  the  general  and  popular  understanding  of  the 
word,  and  that  is  the  legislative  understanding,  where  technical 
words  are  not  used,  or  words  relating  to  a  trade  or  art  But 
here  the  legislature  has  used  a  still  stronger  word,  viz.:  "  pre- 
meditated design."  There  must  be,  therefore,  not  only  the 
t'esign  to  kill,  but  that  design  must  have  been  the  subject  of 
meditation,  or  reflection  before,  as  the  prefix  pre  clearly  re- 
quires. Before  what  is  this  premeditated  design  of  killing  to  be, 
except  before  the  act  that  was  meditated,  viz.,  the  fatal  blow  by 
which  the  killing  was  accomplished.  The  very  requirement 
that  the  design  shall  be  thought  of  and  meditated  before  the 
act  shall  be  committed  which  is  the  cause  of  death,  admits 
that  there  is  an  interval  between  the  design  or  intention  and 


NEW  YORK,  MAY.  1852. 


Sullivan  v.  The  People. 


the  commission  of  the  act.     We  have  no  right  to  strike  out  so 
material  a  part  of  the  word  as  this,  which  gives  peculiar  force 
to  the  ordinary  meaning  of  the  rest  of  the  word.     This  inter- 
pretation  of  the  word   also  corresponds  with   the   expressed 
views  of  the  revisers,  which  seem  to  have  been  to  confine  this 
part    of    the    definition    of    murder   to    what    was    frequently 
called  cases  of  express  malice,  which  is  thus  defined  by  Black- 
stone:  —  "Express  malice  is,  when  one  with  a  sedate,  deliber- 
ate mind  and  formed  design,  doth  kill  another,  which  formed 
design  is  evidenced  by  external  circumstances,  discovering  that 
inward  intention,  as  laying  in  wait,  antecedent  menaces,  former 
grudges,  and  concerted  schemes  to  do  him  some  bodily  harm." 
(1  BL  Com.  199.)     These  external  circumstances  are  all  of  a 
nature  which  show  a  design    formed  before  the  moment  when 
the  crime  was  perpetrated;  and  the  sedate,  deliberate  mind  and 
formed  design  are  descriptive  only  of  a  mind  deliberating  on 
and  then  sedately  carrying  out  its  design.     In  Tennessee,  the 
term  premeditated'is  one  of  those  used  to  define  murder  in  the 
first  degree,  and  in  10  Yergert  551,  Dale's  case,  the  court  said 
premeditation  was  a  "  design  to  kill,  formed  before  the  act." 
In  Davis's  case   (2  Hamphrey,  439.  442),  they  say  that  the 
employment  of  a  deadly  weapon,  although  it  implies  malice  at 
the  common  law,  does  not  imply  that  the  act  was  done  with 
premeditation,  so  as  (o  make  it  murder  in  the  first  degree.     In 
Virginia,  in  Jones's  case  (2  Leigh's  Va.  Rep.  598,  p.  611),  the 
court  say  that  the  death  must  be  the  ultimate  result,  which  thfi 
concurring  will,  deliberation,   and  premeditation  of  the  party 
accused  sought.     In  an  early  case  in  Pennsylvania  (4  Dallas, 
145,   Mulatto   Bob],  the    court    instructed    the    jury  that  the 
offence  was  willful,   deliberate,   and  premeditated'  (this  would 
seem  to  have  been  a  clear  usurpation  of  the-  province  of  the 
jury),  the  judge  then  admitted  that  the  statute  made  premedi- 
tation   an    essential    ingredient  to  constitute    the    crime,   yet 
added  that  still  the  intention  remains  as  much  as  ever  the  true 
criterion  of  the  crime.     This,  in  some  sense,  is  true.     The  in- 
tention is  one  of  the  true  criteria  of  the  crime;  but,  as  the 
judge  admitted,  and  every  one  else  must  admit,  it  is  not  the 


354  DECISIONS  IN  CRIMINAL  CASES. 

Sullivan  v.  The  People. 

only  true  criterion,  for  then  the  intention  to  kill  being  estab- 
lished, the  jury  are  to  inquire  no  further,  and  all  intentional 
killing  is  murder,  though  committed  in  self  defence  or  against 
a  burglar  in  the  act  of  breaking  into  one's  dwelling  house,  or 
in  the  heat  of  passion  in  a  combat  provoked  by  the  deceased, 
without  any  undue  advantage  being  taken,  or  any  dangerous 
weapon  being  used,  and  under  the  honest,  though  erroneous 
belief,  that  it  was  the  only  means  of  saving  the  life  of  the 
accused.  In  Ohio  (12  Ohio  Rep.,  52),  Shoemaker's  case,  the 
court  held  that  if  the  accused  premeditated  the  fatal  act,  he 
was  guilty  of  murder  in  the  first  degree,  "  however  short  the 
time  might  have  been  between  the  purpose  and  its  execution;" 
that  it  mattered  not  how  short  the  time,  if  the  party  had  turned 
it  over  in  his  mind,  weighed,  and  deliberated  upon  it;  but  it 
was  conceded  that  the  offence  was  not  committed  when  the 
design  was  so  hastily  formed  or  premeditated  and  executed  that 
time  did  not  intervene  for  deliberation.  In  2  Tenn.  Rep.  8, 
Anderson's  case,  the  court  say:  —  "  The  law  knows  of  no  spe- 
cific term  within  which  an  intent  to  kill  must  be  formed  so  as 
to  make  it  murder.  If  the  will  accompany  the  act  a  moment 
antecedent  to  the  act  itself  which  causes  death,  it  seems  to  be 
as  completely  sufficient  to  make  the  offence  murder,  as  if  it 
were  a  day,  or  any  other  time."  Whether  the  rule  thus  laid 
down  is  not  too  harsh  to  be  consistent  with  the  term  premedi- 
tated, is  not  now  before  the  court;  but  the  principle  is  clearly 
admitted  by  it  that  some  period  must  intervene  between  the 
intent  and  the  act.  In  our  own  state,  in  The  People  v.  Enoch  ( 13 
Wend.  159),  the  meaning  of  the  first  subdivision  of  this  section 
of  our  revised  statutes  was  incidentally  passed  upon,  and  Chief 
Justice  Nelson  considered  it  as  confined  to  express  malice,  or 
"  malice  aforethought,  according  to  its  sense  in  common  par- 
lance, and  as  originally  used."  (Id.  p.  164.)  The  chancellor 
also  said  that  "  the  meaning  of  the  term  malice  aforethought 
had  been  enlarged  so  as  to  include  implied  malice  by  judicial 
construction.  (P.  164.)  In  White's  case,  senators  Furman, 
Vt-rplanck,  and  Wager,  concurred  in  the  view  that  the  words 
premeditated  „  design,"  as  used  by  the  statute,  limit  the  signi- 


NEW  YORK,  MAY,    1852. 


Sullivan   *.  The  People. 


fication  of  malice  aforethought  to  express  malice.  (24  Wend. 
558,  569,  581.)  There  are  some  cases  at  Oyer  and  Terminer, 
in  which  the  rule  adopted  in  the  court  below  was  laid  down; 
in  one  the  party  was  acquitted,  perhaps  on  account  of  the  jury 
seeing  no  alternative  between  an  absolute  acquittal  and  the 
punishment  less  than  death,  which  the  party  may  have  deserved. 
But  the  rule  has  never,  it  is  believed,  received  the  sanction  of 
the  court  after  an  argument  at  a  general  term  or  in  bench.  It 
does  not  correspond  with  the  spirit  of  the  day,  actuating  not 
classes  only,  but  all  parties,  which  is  that  the  penalties  of  the 
law  should  be  mitigated;  and  that  by  this  means  the  object  of 
the  law  in  securing  a  certainty  of  conviction  where  guilt  is 
proved,  may  be  more  effectually  accomplished.  It  was  argued 
that  the  words  used  by  the  judge  in  his  charge  were  "  intention 
(not  design)  to  kill  formed  at  the  instant  of  striking  the  blow;" 
and  that  intention  always  implied,  and  was  the  result  of  pre- 
meditation. The  court  below  would  be  unwilling  to  adopt  this 
argument,  or  to  allow  a  jury  to  be  as  much  misled  as  they 
would  have  been  by  this  charge,  if  such  a  meaning  **ere  in- 
tended. That  court  have  themselves  defined  the  word  by  their 
own  use  of  it.  They  speak  of  the  intention,  and  say  it  is 
enough,  "  though  formed  at  the  instant  of  striking  the  fatal 
blow."  The  intention,  therefore,  that  they  spoke  of  was  such 
as  could  be  formed  "  at  the  instant,"  and  needed  no  premedita- 
tion. This  part  of  the  charge  was  material  to  the  case;  and 
although  in  the  case  of  Clark  there  are  circumstances  from 
which  the  question  may  be  raised  whether  it  ought  not  to  be 
left  to  a  jury  to  say  whether  he  was  not  guilty  under  the  second 
subdivision  of  the  section,  still,  that  was  a  matter  not  left  to 
them,  and  which  this  court  ought  not  to  take  from  them,  so  far 
as  the  intent  of  the  accused  is  concerned,  and  probably  in  other 
respects,  and  is  a  question  which  the  court  do  not  wish  to  pass 
upon.  A  new  trial  should  be  granted  before  the  court  of  Oyer 
and  Terminer  in  both  cases. 

In  the  case  of  Clark,  the  following  opinion  was  pronounced 
by  RV/OSEVFLT,  J.     The  prisoner,  Joseph  Clark,  was  convicted 


356  DECISIONS  IN  CRIMINAL  CASES. 

Sullivan  v.  The  People. 

at  a  court  of  Oyer  and  Terminer,  held  in  September  last,  of  the 
crime  of  murder,  and  sentenced  to  be  executed  in  November 
following.  A  stay  of  proceedings  having  been  obtained  for  the 
purpose,  his  case  is  now  brought  before  the  supreme  court  for 
review  on  certain  points  of  law  raised  at  the  trial,  and  which 
his  counsel  insist  were  erroneously  decided  against  him.  It 
appears  from  the  bill  of  exceptions  which  it  should  be  borne 
in  rnind  does  not  bring  up  all  the  facts,  that  some  time  in  July 
last,  about  an  hour  after  midnight,  some  seven  or  eight  persons, 
including  the  prisoner  and  one  John  D.  Brown,  were  together 
in  Oliver  street;  that  there  were  a  great  noise  and  indications 
of  a  fight  between  two  sailors,  one  having  taken  off  his  coat, 
that  two  police  officers,  Sullivan  and  the  deceased,  hearing 
the  noise,  came  up  and  requested  the  persons  to  disperse,  which 
they  did,  leaving  Brown  and  the  prisoner,  however,  whose 
lodgings  were  immediately  opposite  to  the  scene  of  disturbance, 
remaining;  these  two  also  were  then  requested  by  the  officers  to 
go  home,  which  it  is  contended  they  were  not  bound  to  do. 
They  did  not  refuse;  but  Brown  hesitating,  deceased  took  hold 
of  him  gently  by  the  arm,  to  lead  him  to  his  boarding  house — 
an  act  for  which  it  is  also  contended  the  policeman  had  no 
authority.  At  all  events,  Brown  resented  it,  and  clenched  the 
deceased,  when  Sullivan  interfered  and  separated  them.  After 
going  a  few  steps  further,  another  clenching  and  separation 
took  place.  Deceased  continued  to  urge  Brown  along,  and  at 
length  got  him,  according  to  the  testimony,  as  far  as  the  alley 
way  to  the  house  in  which  he  boarded,  when  a  third  clenching 
took  place,  Brown  trying  to  throw  the  deceased.  Sullivan 
again  interfered,  and  in  the  scuffle  struck  Brown  with  his  club. 
The  prisoner  now  procured  a  cart  rung,  and  came  to  the  defence 
of  his  friend,  striking  the  deceased  a  violent  blow  on  the  head, 
and  repeating  the  blows  three  times  after  he  had  fallen.  He 
then  went  into  his  lodgings.  Deceased  was  removed  to  the 
hospital,  where  he  died  the  same  night.  The  conduct  of  the 
deceased  policeman,  it  is  in  testimony,  was  mild  and  forbearing, 
and  there  is  no  conceivable  motive  for  prisoner's  assault  upon 
him,  unless  it  be  the  one  intimated  by  him  immediately  after 


NEW  YORK.  MAY,   :M2.  357 


Sullivan  r.  The  People. 


reaching  his  lodgings  —  that  "  seeing  two  officers  beating  a 
sailor,  he  knocked  one  of  them  down."  On  the  trial  the  de- 
fence rested  mainly  on  two  points:  first,  that  there  was  no 
premeditation;  and  secondly,  that  the  act,  although  unjustifia- 
bly severe,  was  defensive;  and  that,  in  either  view,  the  case 
was  one  of  manslaughter,  and  not  murder.  The  court,  among 
other  things,  charged  the  jury  that,  under  the  evidence  in  the 
cause,  there  was  no  sufficient  excuse  shown  for  the  violent 
interference  of  the  prisoner;  that  the  mere  fact  of  Brown  and 
the  policeman  Sullivan  being  engaged  in  the  alleged  quarrel, 
shown  by  the  evidence,  was  not  sufficient  to  justify  the  assaults 
upon  Gillespie;  and  that,  so  far  as  deceased  was  concerned,  it 
did  not  appear  that  he  had  given  offence  to  any  one.  The 
court  further  charged,  that  if  the  jury  believed  that  the  killing 
was  produced  by  the  prisoner,  with  an  intention  to  kill,  though 
that  intention  was  formed  at  the  instant  of  striking  the  fatal 
blow,  it  was  murder;  and  that  the  jury  might  infer  such  inten- 
tion from  the  circumstance  of  the  case,  and  among  other  things, 
from  the  nature  of  the  weapon,  and  the  wounds  given  by  it. 
The  first  part  of  this  charge,  upon  a  more  deliberate  review, 
can  hardly  be  said  to  do  full  justice  to  the  position  of  the  parties. 
It  assumes  that  Brown  and  the  policeman,  Sullivan,  were  alone 
engaged  in  the  quarrel;  whereas  the  proof  shows  that  the  de- 
ceased, from  the  kindest  motives,  no  doubt,  was  the  first  to  lay 
hands  upon  Brown,  gently,  it  is  true,  but  still,  as  the  resent- 
ment of  the  latter  shows,  offensively.  Sullivan  and  the.  deceased 
clearly  co-operated;  and  although  Sullivan  alone  used  the  club, 
both  in  judgment  of  law,  were  responsible  for  that  act,  lawful 
or  unlawful.  Had  death  ensued  to  Brown,  both  must  have 
been  tried  for  the  homicide;  and  on  such  trial,  both  must  have 
been  required  to  prove  that  they  were  engaged  in  the  discharge 
of  a  legal  duty,  and  that  the  act,  however  deplorable,  was 
necessarily  committed,  in  overcoming  actual  resistance.  Was 
it,  then,  the  legal  duty  of  the  policemen,  after  the  gathering  had 
dispersed  and  quiet  was  restored,  to  compel,  by  force,  the  two 
remaining  persons,  standing  on  the  sidewalk,  in  front  of  their 
own  homes,  to  go  in,  whether  willing  or  unwilling  1  If  it  was 


358 


DECISIONS  IN  CRIMINAL  CASES. 


Sullivan  v.  The  People. 


not  what  must  have  been  the  result  of  such  trial  '.  A  verdict 
of  manslaughter,  in  one  or  other  of  the  four  degrees  would  seem 
to  have  been  very  probable.  Brown,  however,  although  thus 
assaulted  and  with  a  dangerous  weapon,  in  point  of  fact,  was 
not  killed  but  only  severely  wounded.  But  did  the  circum- 
stances furnish  no  excuse  for  interference  in  his  favor?  Had  it 
been  the  case  of  a  wife,  parent,  child,  master,  mistress,  or  ser- 
vant, and  there  had  been  reasonable  ground  to  apprehend  im- 
minent danger  of  some  great  personal  injury,  the  law  would 
have  justified  interference,  even  to  the  point  of  killing. 
Although  Brown  stood  in  neither  of  these  relations  to  the  pri- 
soner, and  may  have  been,  as  far  as  we  know,  a  mere  stranger, 
yet  the  spirit  of  the  law  in  some  degree  at  least  may  be  cer- 
tainly invoked  to  mitigate  what  otherwise  would  seem  to  be 
not  only  an  atrocious,  but  utterly  motiveless  and  inexplicable 
deed.  Next,  as  to  the  prisoner's  intention  to  kill —  this  clearly 
could  not  be  inferred  from  the  nature  of  the  weapon  alone,  un- 
less we  go  back,  and  apply  the  same  rule  to  the  use  of  the  club 
by  Sullivan  upon  the  head  of  Brown.  The  club  and  the  rung 
were  alike  dangerous  weapons-  Death  might  result  from  the 
use  of  either.  But  the  prisoner,  it  is  said,  after  an  interval  re- 
peated his  blows;  and  so  did  Sullivan.  Admitting,  however, 
that  there  was  no  palliation — that  there  was  an  actual  inten- 
tion to  kill — but  that  such  intention  was  only  formed  at  the 
instant  of  striking  the  fatal  blow — was  the  act  manslaughter, 
calling  for  incarceration  in  the  state  prison,  or  was  it  murder, 
to  be  expiated  only  on  the  gallows?  The  law  says  that  killing 
without  authority,  when  perpetrated  from  a  premeditated  de- 
sign to  effect  the  death  of  the  person  killed,  or  of  any  human 
being  is  murder.  Is  then  an  intention  formed  on  the  instant  a 
premeditated  design?  Consulting  merely  the  popular  accepta- 
tion of  language,  or  even  the  dictionaries  in  general  use,  we 
must  certainly  answer  that  it  is  not.  So  far  from  being  syno- 
nymous, these  two  forms  of  expression  are  generally  employed 
to  convey  directly  opposite  ideas.  All  extempore  discourse  is 
understood  to  be  the  antipode  of  a  premeditated  one.  The 
words  premditate  ami  design  both  import  forethought,  careful 


JN'EW  YORK,   MAY,   1852  35  y 

Sullivan  ».  The  People. 

reflection,  deliberately  arranged  purpose — ideas  all  involving^ 
in  their  structure,  the  essential  element  of  time.  We  may  not 
perhaps  be  able  in  every,  or  in  any  case,  to  define  the  precise 
number  of  hours  or  days;  but  still  there  must  be  time,  reasona- 
ble time — time  for  reflection — time  to  survey  the  contemplated 
deed  in  all  its  bearings  and  probable  results;  and  to  contrive 
and  arrange,  if  so  decided,  the  means  and  method  and  occasion 
of  its  deadly  accomplishment.  How,  then,  can  it  be  said, 
without  shocking  all  our  notions  of  speech,  whether  common 
or  cultivated,  that  an  intention  to  kill,  formed  on  the  instant  of 
striking  the  fatal  blow,  is  the  same  as  a  premeditated  design  to 
commit  the  crime  of  murder?  The  present  law  of  homicide,  it 
must  be  remembered,  is,  in  this  state,  a  written  and  a  recent 
code.  It  was  composed  by  men  selected  to  give  utterance  to  the 
more  humane  spirit  of  the  age,  and  in  language  adapted,  or  at 
least  intended  to  be  adapted  to  the  present  understanding  of 
those  whose  conduct  it  was  to  regulate.  This  consideration, 
therefore,  must  furnish  the  rule  for  its  interpretation,  and  with 
such  rule,  or  even  without  it,  it  seems  impossible  to  believe  that 
the  legislature,  in  treating  the  subject  of  homicide,  and  mea- 
suring its  criminality  and  punishment,  intended  to  place  sudden 
impulse  upon  the  same  footing  as  deliberate  malice.  To  do  so, 
instead  of  softening,  would  have  been  to  aggravate  the  harsh 
features  of  the  common  law,  and  to  violate  .the  almost  universal 
sentiment  of  the  community.  But,  says  the  district  attorney, 
if  the  crime  of  the  prisoner  (and  a  great  crime  it  is  admitted  to 
be)  is  not  adjudged  to  be  murder,  the  criminal,  contrary  to  all 
just  notions  of  the  adaptation  of  punishment,  will  escape  with 
the  comparatively  slight  penalty  assigned  to  manslaughter  in 
the  fourth  degree,  not  exceeding  two  years'  confinement  in  the 
state  prison.  If  this  result  were  to  follow  as  a  necessary  con- 
sequence of  a  reversal  of  the  judgment  of  the  court  below,  it  , 
would  afford  no  reason  for  hanging  the  offender.  It  would 
merely  show  that  in  framing  a  system  of  written  law,  an  over- 
sight not  very  uncommon  in  such  cases  had  occurred,  to  be  re- 
medied, not  by  the  judiciary,  but  by  the  legislature.  If,  how- 
ever, the  meaning  above  ascribed  to  the  word  "  design,"  as 


360 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Clark. 


used  in  the  statute,  be  the  true  one  —  if  it  imply  forethought 
contrivance,  laying  in  wait,  deliberate  purpose  —  then  there  is 
no  difficulty,  should  the  case  call  for  such  a  verdict,  in  bringing 
it  under  the  head  of  manslaughter  in  the  first  or  second  degree, 
and  applying  to  the  crime  such  punishment,  extending  even  to 
imprisonment  for  life,  as  may  be  justly  adapted  to  whatever  cir- 
cumstances of  aggravation  may  have  attended  its  commission. 
My  conclusion,  therefore,  is  that  the  verdict  should  be  set  aside 
and  a  new  trial  ordered. 

EDWARDS,  J.,  concurred. 

Judgment  reversed  and  new  trial  awarded. 


SUPREME  COURT.     New  York  General  Term,  December,  1852. 
Edwards,  Mitchell  and  Roosevelt,  Justices. 

THE  PEOPLE  vs.  JOSEPH  CLARK.     THE  PEOPLE  vs.  JAMES  SULLIVAN. 

The  court  of  last  resort  in  this  state  is  the  exclusive  judge  of  its  own  juris- 
diction, and  its  decision  on  that  point  can  not  be  questioned  by  the  court  be- 
low, when  directed  to  carry  into  effect  a  judgment  of  reversal;  but  where 
the  jurisdictional  question  has  not  been  decided  by  the  court  of  last  resort,  it 
is  open  to  examination  in  the  court  below. 

A.  sentence  inflicting  corporeal  punishment  can  not  be  pronounced  in  the  absence 
of  the  defendant;  but  the  personal  presence  of  the  defendant  is  not  necessary 
where  a  fine  only  is  imposed. 

On  a  writ  of  error  brought  to  reverse  a  judgment  in  a  capital  case,  the  personal 
attendance  of  the  defendant  on  the  argument  or  at  the  decision  in  the  ap- 
pellate court,  is  not  necessary  to  give  such  court  jurisdiction. 

The  court  of  appeals  having  reversed  the  judgments  rendered 
by  the  supreme  court  in  both  these  cases,  the  district  attorney 
applied  to  the  supreme  court,  to  issue  warrants  for  the  execution 
of  the  defendants.  The  grounds  of  the  motion  are  sufficiently 
stated  in  the  opinion  of  the  court. 

JV.  B.  Blunt  (District  Attorney),  for  the  people 


NEW  YORK,  DECEMBER,  1SJ2. 


The  People  ».  Clark. 


J.  McKeon,  and 

R.  H.  Morris,  for  the  defendants. 

By  the  Court,  MITCHELL,  J.  —  The  prisoners  in  both  these 
cases  were  tried  at  the  Oyer  and  Terminer  and  found  guilty  of 
murder.  The  judge  who  presided  at  the  trial  charged  the  jury 
as  to  the  meaning  of  the  statute  defining  murder;  the  prisoners, 
by  their  counsel,  excepted  to  the  charge,  and  a  writ  of  error 
was  brought  to  this  court.  This  court  pronounced  the  charge 
of  the  judge  erroneous,  and  in  May  last  ordered  a  new  trial.  In 
pursuance  of  a  statute  passed  in  the  preceding  March,  a  writ  of 
error  was  brought  to  review  our  judgment,  and  the  court  of  ap- 
peals has  reversed  our  judgment  and  affirmed  that  of  the  Oyer 
and  Terminer.  During  all  that  time  the  prisoners  have  re- 
mained in  prison,  except  when  they  have  been  brought  before 
the  Oyer  and  Terminer,  or  this  court.  They  are  now  brought 
up  before  us,  pursuant  to  sections  23  and  24  of  2  R.  S.  659,  the 
district  attorney  insisting  that  the  sentence  of  death  remains  in 
full  force,  and  that  no  legal  reasons  ex'st  against  the  execution 
of  the  sentence  and  calling  on  the  court  to  issue  a  warrant  for 
the  execution.  The  prisoners  by  their  counsel  insist  in  oppo- 
sition to  this  motion  that  the  order  of  this  court  granting  a  new 
trial  remains  in  force  and  assign  various  reasons  all  intended  to 
show  that  the  court  of  appeals  had  not  gained  jurisdiction  of 
the  case  when  their  decision  was  made.  The  prisoners'  counsel 
very  properly  refrained  from  addressing  to  the  court  a  single 
argument  against  the  decision  of  the  higher  court,  on  the  point 
on  which  that  court  and  this  differed.  If  the  appellate  court 
had  jurisdiction,  its  decision  became  the  law  of  the  case;  and 
when  remitted  to  the  court  for  execution,  became  the  law  and 
judgment  of  this  court  by  virtue  of  the  higher  authority  of  that 
court;  and  as  we  would  have  been  bound  to  enforce  obedience 
by  the  Oyer  and  Terminer  to  the  judgment  of  this  court,  while 
it  remained  unreversed,  so  are  we  bound  to  receive  the  judgment 
of  the  higher  court  and  even  to  carry  its  decrees  into  execution 
when  that  court  has  decided  within  its  jurisdiction,  whatever 
may  be  our  individual  opinions.  But  the  question  whether  the 

VOL.  I.  46 


362  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Clark. 

court  of  appeals  had  jurisdiction,  was  very  properly  argued 
before  us.  It  may  be  admitted  that  an  appellate  court,  and  es- 
pecially (in  the  words  of  Ch.  J.  Marshal)  "  that  the  court  of 
dernier  resort  in  every  state  decides  upon  its  own  jurisdiction." 
(8  Peters,  U.  S.  R.  320.)  But  in  this  case,  the  question  now 
presented,  whether  in  a  criminal  case  where  the  punishment  is 
to  be  corporeal,  any  court  has  jurisdiction  over  the  prisoner 
.unless  he  be  brought  before  it,  was  never  brought  before  that 
court,  and  so  that  court  did  not  "  decide  upon  its  own  jurisdic- 
tion in  that  respect."  The  question,  therefore,  remains  open. 
Certainly  there  are  cases  in  which  it  would  be  our  plain  duty 
to  pass  on  such  a  question;  and  if,  in  any  case,  we  should  not 
hesitate  to  fulfill  that  duty,  it  would  be  when  the  law  directs  us 
to  ascertain  whether  the  sentence  of  death  against  two  individ- 
uals still  "  stands  in  full  force,"  and  whether  any  "legal  reasons 
exist  against  the  execution  of  such  sentence."  If  the  act  of 
March  22, 1852,  giving  the  court  of  appeals  jurisdiction  in  such 
a  case  had  not  been  passed,  then  according  to  its  own  decision 
in  The  People  v.  Corning  (2  Comst.  9),  it  would  have  had  no 
jurisdiction,  and  its  decisions  would  consequently  have  been  of 
no  authority,  and  it  would  have  been  the  duty  of  this  court  not 
to  carry  out  its  decision  so  made.  If,  however,  on  a  professed 
reexamination  of  that  case,  it  had  recalled  that  decision,  it  had 
the  power  to  do  so;  but  if  there  were  no  evidence  that  it  had 
reexamined  it,  or  professed  to  pass  on  the  question  of  its  juris- 
diction again,  the  fair  inference  would  be  that  that  question  had 
been  overlooked  rather  than  that  the  court  had  indirectly  re- 
versed its  deliberate  decision  made  directly  on  the  point.  The 
supreme  court  of  the  United  States  is,  where  it  has  jurisdiction, 
as  much  above  the  court  of  appeals  as  that  court  is  above  this, 
yet  if  the  writ  of  error  had  issued  since  the  act  of  1852,  from 
the  United  States  court  to  this  court,  and  the  United  States 
court  had  pronounced  the  same  judgment  that  the  court  of  ap- 
peals has,  this  court  would  have  no  right  to  obey  it,  as  the 
supreme  court  can  issue  its  writ  of  error  only  in  certain  cases, 
and  then  "  to  the  highest  court  of  J  iw  or  equity  of  the  state  in 
which  the  decision  is  made,"  and  not  to  any  but  the  highest 


NEW  YORK,  DECEMBER,  18-32.  353 

The  People  v.  Clark. 

rourt.  Nor  would  that,  the  highest  tribinal  of  the  country, 
disapprove  of  such  a  course.  In  the  case  of  Davis  against  Pack- 
ard, that  court  decided  that  the  judgment  of  the  court  for  the 
correction  of  errors  was  erroneous,  and  adjudged  that  the 
judgment  of  the  court  for  the  correction  of  errors  in  this 
state  be  reversed,  and  that  the  cause  be  remanded  to  the 
court  for  the  correction  of  errors  with  directions  to  con- 
form its  judgment  to  that  opinion.  (8  Peters,  U.  S.  Rep. 
321.)  The  court  of  errors  evaded  conforming  its  judgment 
to  that  opinion,  by  announcing  in  its  judgment  the  opinion 
of  the  United  States  court,  and  then  declaring  that  the  court 
of  errors  had  no  jurisdiction  to  reverse  a  decision  of  our  su- 
preme court  for  an  erior  in  fact,  and  therefore  quashed  the  writ 
of  en  or  which  it  had  issued,  and  thus  in  effect  left  the  erroneous 
judgment  of  the  supreme  court  in  full  force.  The  United 
States  court  recognizing  the  principle  that  the  court  of  dernier 
resort  in  the  state  could  conclusively  judge  of  its  own  jurisdic- 
tion, yielded  to  the  decision  and  affirmed  this  last  judgment  of 
the  court  of  errors.  By  this  decision  of  the  highest  court  of  our 
state,  if  a  decision  were  needed  on  that  point,  there  are  cases 
where  it  has  no  jurisdiction,  and  that  decision  is  affirmed  by  the 
highest  tribunal  in  the  union.  To  the  same  effect  is  the  de- 
cision of  the  court  of  appeals  in  Oakley  v.  Jispinwall  (2  Comst. 
548),  where  that  court  vacated  its  own  judgment  of  reversal, 
because  one  member  of  the  court  had  sat  at  the  argument,  who, 
by  law,  had  no  right  to  sit  there  on  account  of  being  distantly 
related  to  one  of  the  parties,  although  the  counsel  who  moved 
to  vacate  the  judgment  had  requested  him  to  sit.  It  is  admitted 
and  proved  that  the  prisoners  were  at  no  time  before  the  court 
of  appeals,  and  the  record  shows  that  they  appeared  there  by 
their  counsel.  The  judgment  of  the  court  is  that  the  judgment 
of  the  supreme  court  be  reversed  and  that  of  the  Oyer  and  Ter- 
ininer  in  all  things  affirmed,  and  that  the  record  be  remitted  to 
the  supreme  court,  in  order  that  this  court  may  direct  the  sen- 
tence of  death  to  be  executed.  The  cases  state  most  decidedly 
that  no  corporeal  punishment  can  be  lawfully  awarded  by  the 
court  in  the  absence  of  the  prisoner.  Whether  they  mean  tfcat 


364 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  t>.  Clark. 


the  judgment  awarded  in  his  absence  would  be  erroneous  merely, 
or  without  jurisdiction,  is  a  material  question.  In  Lofft,  409,  the 
court  was  informed  that  the  crown  was  inclined  to  mercy,  and 
was  desired  to  discharge  the  prisoner  on  some  corporeal  pun- 
ishment, as  he  was  too  poor  to  pay  a  fine.  They  said  "  they 
could  not  award  corporeal  punishment  in  absentem,"  and  impo- 
sed a  fine  of  one  shilling.  The  case  of  Rex  against  Harris  and 
against  Duke,  in  9  William  III,  is  reported  in  a  number  of 
authorities.  There  the  court  was  called  on  to  pronounce  judg- 
ment in  the  absence  of  the  party,  after  he  was  outlawed.  In 
Holt,  p.  399,  C.  J.  Holt  is  reported  to  have  said:  "  Sir  Samuel 
Astny  tells  me  there  never  was  a  writ  to  the  sheriff  to  take  up 
any  man  that  was  at  large  and  to  put  him  in  the  pillory;  there- 
fore, I  think  we  can  not  give  any  such  judgment  in  the  absence 
of  the  party,  which  can  not  be  executed.  If  he  be  in  court,  we 
deliver  him  to  the  marshal,  and  an  entry  is  on  the  roll  that  the 
marshal  do  execution  periculo  incumbente.  And  if  we  were  to 
send  him  into  Somersetshire  there  is  to  be  a  writ  of  assistance 
to  the  sheriff,  but  if  he  came  from  Newgate  hither,  then  if  he 
be  remanded  there  goes  indeed  a  writ  to  the  sheriff,  but  then 
constat  de  personal  The  difficulties  here  stated  are,  that  there 
was  no  writ  known  after  judgment,  to  bring  up  the  prisoner 
before  the  officer  who  was  to  execute  the  judgment,  and  that  if 
such  a  writ  issued  (it  not  bringing  the  party  into  court  but  be- 
fore the  officer  only)  the  person  taken  would  have  no  opportu- 
nity to  show7  that  he  was  not  the  one  who,  by  the  judgment, 
was  to  be  punished.  These  objections  would  not  exist  in  an 
appellate  court,  which  was  not  to  cause  the  sentence  to  be 
executed,  but  to  devolve  that  responsibility  on  the  court  below. 
C.  J.  Holt  added:  "  I  never  knew  a  judgment  for  corporeal 
punishment  unless  the  party  were  present,  except  in  the  case 
of  Mrs.  Buckridge,  which  was  irregular."  In  the  case  of  Duke, 
he  said:  "  Judgment  can  not  be  given  against  any  man  in  his 
absence,  for  a  corporeal  punishment.  He  must  be  present  when 
it  is  done.  If  a  man  was  outlawed  for  felony,  execution  was 
never  awarded"  against  the  felon  till  brought  to  the  bar.  There 
is  no  precedent  of  any  such  entry;  for  if  we  give  judgment  that 


NEW  YORK,  DECEMBER,  1858. 


The  People  ».  Clark. 


he  should  be  put  in  the  pillory,  it  might  be  demanded  when, 
and  the  answer  would  be,  when  they  catch  him.  And  there 
never  was  a  writ  to  take  a  man  and  put  him  in  the  pillory;  it 
ij  not  like  to  a  capias  projini,  which  is  to  bring  him  into  court 
to  pay  the  money.  A  defendant  may  submit  to  a  fine  though 
absent,  if  he  has  a  clerk  in  court  that  will  undertake  for  the 
fine."  The  opinion  is  given  to  the  same  effect  in  Lord  Raym  , 
267,  1  Satk.  400,  and  Skinner,  684;  Combroback,  447  and  12; 
More,  156,  and  section  2,  Hawk.  pi.  cr.,  ch.  48  and  17,  and 
Barbour's  Criminal  Law.  The  difficulties  here  stated  are  of  a 
like  character  to  those  before  noticed,  and  do  not  apply  to  a 
court  which  is  not  to  award  the  execution,  but  is  merely  to  or- 
der another  court  to  award  it.  In  1  Salk.  556,  Queen  v.  Tem- 
pleman,  it  was  again  said  that  when  a  man  is  to  receive  any 
corporeal  punishment,  judgment  can  not  be  given  against  him 
in  his  absence,  for  there  is  no  process  to  take  a  man  and  put 
him  in  the  pillory.  In  Rex  v.  Hann  #  Price  (3  Burr.  1786), 
it  was  agreed  that  if  a  fine  only  was  to  be  imposed,  it  was  in 
the  discretion  of  the  court  to  give  judgment  in  the  absence  of 
the  defendants;  but  otherwise  they  should  be  .present.  And  it 
was  said  that  even  if  a  fine  was  to  be  imposed  and  the  case 
was  of  a  gross  nature,  the  defendants  should  appear  in  person 
for  the  sake  of  example,  and  to  prevent  the  like  offences  being 
committed  by  others,  as  the  notoriety  of  their  being  called  up 
to  answer  criminally  for  such  offences  would  very  much  conduce 
to  deter  others  from  venturing  to  commit  the  like.  These  rea- 
sons only  apply  when  the  sentence  is  about  to  be  executed 
Chitty  says  in  his  Criminal  Law,  p.  695:  "When  any  corporeal 
punishment  is  to  be  inflicted  on  the  defendant,  it  is  absolutely 
necessary  that  he  should  be  personally  before  the  court  at  the 
time  of  pronouncing  the  sentence,  and  he  assigns  the  reasons 
given  in  the  above  cases."  He  adds:  "  And  when  he  is  com- 
mitted to  prison,  it  ought  to  appear  upon  the  record  that  he  was 
present  at  the  time  of  the  committal.  So  when  a  judgment  has 
been  once  pronounced  on  a  trial,  and  execution  awarded  against 
him,  which  is  subsequently  countermanded,  so  that  he  is  not 
put  to  death  at  the  time  specified  and  part  of  the  ensuing  term 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  r.  Clark. 


has  elapsed,  execution  can  not  afterwards  be  awarded  without 
bringing  him  again  to  the  bar  in  person."  (See,  accordingly, 
Kingsley's  Case,  quoted  by  C.  J.  Hall  in  Lord  Raym.,  482,  and 
at  p.  700.)  "  It  is  now  indispensably  necessary,  even  in  cler- 
gyable  felonies,  that  the  defendant  shall  be  asked  by  the  clerk  if 
he  has  anything  to  say  why  judgment  of  death  should  not  be 
pronounced  on  him,  and  it  is  material  that  this  appear  upon 
the  record  to  have  been  done,  and  its  omission  after  judgment 
in  high  treason,  will  be  a  sufficient  ground  for  the  reversal  of 
the  attainder."  In  3  More,  265,  "  an  anonymous  case  is  given 
where  an  attainder  was  reversed  on  account  of  this  omission  in 
the  record,"  and  this  good  reason  is  given  for  requiring  it  to  be 
asked,  "that  possibly  he  might  have  pleaded  a  pardon."  That 
advantage,  and  all  others  which  the  prisoner  could  have,  con- 
sistently with  the  legality  of  the  sentence,  he  can  have  before 
the  court  which  is  to  award  execution,  even  if  he  do  not  appear 
before  the  higher  court.  (Such,  also,  was  the  case  of  Rex  v. 
Spike,  3  Salk,  358;  there  the  omission  is  called  erroneous.)  In 
2  Hole's  Pleas  of  the  Crown,  it  is  said:  "  If  A  be  convicted  at 
Oyer  and  Termmer  of  felony,  and  the  record  be  removed  to  the 
King's  Bench  by  certiorari,  and  the  prisoner  also  be  removed 
hither  by  habeas  corpus,  the  court  may  give  judgment  after  that 
conviction,  but  there  must  first  be  a  filing  of  the  record  in  the 
King's  Bench,  and  he  must  be  called  to  say  what  he  can  why 
judgment  should  not  be  given  against  him,  and  thereupon  judg- 
ment may  be  given."  So  in  Sir  Walter  Raleigh's  case,  C.  J., 
495,  when  the  execution  was  extended  for  three  years,  he  was 
afterwards  brought  into  court,  sentenced  and  executed.  In 
The  People  v,  Taylor,  (3  Denio,  98,  note  a,)  the  court  being 
about  to  impose  sentence,  the  defendant's  counsel  objected  that 
it  could  not  be  done  in  the  defendant's  absence.  The  court 
said,  in  substance,  that  when  a  corporeal  punishment  is  to  be 
inflicted,  then  "  the  rule  is  that  such  a  sentence  should  not  be 
imposed  in  his  absence,"  but  that  if  the  court  meant  to  impose 
a  fine  only,  that  rule  would  not  apply,  although  the  offence  was 
•uch  that  the  court  in  their  discretion  might  fine  or  imprison. 
In  The  People  v.  Son,  (  12  Wend.  348,)  Savage,  Ch,  J,,  also 


NEW  YORK,  DECEMBER,  1852.  307 

The  People  *.  Clark. 

says  that  the  rule  is,  that  when  any  corporeal  punishment  is  to 
be  inflicted  on  the  defendant,  he  n.ust  be  personally  present  in 
court  when  sentence  is  pronounced."  And  in  The  People  v. 
Winchill,  (7  Cowen,  525,)  the  court  refused  to  render  judgment 
until  the  prisoner  should  be  brought  into  court  although  he 
was  out  on  bail.  None  of  these  cases  have  shown  what  the 
rule  is  in  the  appellate  court  and  they  all  are  consistent  with 
the  idea  that  the  defect  would  be  ground  only  for  the  writ  of 
error,  and  not  for  holding  the  judgment  void.  Chitty  says,  (Cr 
Law,  751,)  that  while  the  writ  of  error  is  pending,  "  in  cases 
of  felonies,  the  defendant  must  be  in  court  upon  all  motions." 
He,  however,  quotes  no  authority  for  this,  and  we  find  none. 
The  practice  in  our  courts,  in  this  respect,  seems  not  to  have 
been  uniform.  In  the  case  of  Rector,  he  was  brought  into 
court,  and  so  in  many  other  cases.  In  others,  the  argument 
has  been  without  the  presence  of  the  prisoner.  If  the  final 
judgment  were  in  his  favor  of  course  he  would  not  object,  and 
if  the  judgment  of  the  court  below  were  against  him,  ?nd  that 
were  affirmed  on  his  writ  of  error  he  could  not  object.  The 
cases  in  which  the  courts  have  proceeded  without  the  presence 
of  the  prisoner  are  sufficiently  numerous  to  lead  to  the  conclu- 
sion that  the  presence  of  the  prisoner  in  the  higher  court  was 
not  essential  to  its  jurisdiction,  even  if  his  absence  would  make 
the  proceedings  erroneous.  And  when  the  highest  court  of  the 
state  gives  a  judgment  which  makes  void  an  order  for  a  new 
trial,  and  specially  and  carefully  orders  the  sentence  of  death 
to  be  pronounced,  it  can  hardly  be  supposed  that  it  was  done 
without  that  court  considering  that  it  had  jurisdiction  of  the 
person  of  the  prisoners.  To  obtain  jurisdiction  over  the  person, 
it  is  generally  necessary  only  to  have  process  served  on  the 
party,  in  due  form  of  law,  giving  him  such  notice  of  the  new 
action  as  the  court  regards  as  an  equivalent  to  the  bringing 
him  into  court.  That  was  done  in  this  case,  by  serving  a 
copy  of  the  writ  of  error  on  the  prisoner.  In  other  cases, 
especially  in  inferior  courts,  a  special  statute  has  sometimes 
prevented  their  obtaining  jurisdiction  unless  the  party  were 
actually  before  the  court.  Such  was  Bigelow  v.  Stearns,  ( 19  / 


.(33  DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Clark. 


R.  39.)  In  other  cases  it  has  been  held  that,  if  no  process  was 
served  on  a  defendant  and  he  did  not  appear  in  court  by  an 
attorney,  the  judgment  against  him  was  void.  Such  was  Borden 
v.  Fitch,  ( 15  /.  R.  141,)  and  many  others.  And  it  may  be  that 
the  express  statutory  provision,  (2  R.  S.  735  and  1S>)  that  "  no 
person  indicted  for  any  felony  can  be  tried  unless  he  be  personally 
present  during  such  trial,"  would  make  void  a  trial  when  the 
person  indicted  was  not  present.  But  the  trial  there  intended 
is  that  which  is  properly  called  the  trial,  namely,  that  before 
the  jury,  as  the  rest  of  the  title  containing  that  section  tends  to 
show. 

It  is  also  true  that  at  common  law  the  defendant  could  not 
appear  by  counsel,  and  that  the  privilege  to  appear  by  counsel, 
1  now  granted,  was  not  intended  to  dispense  with  the  prisoner's 
personal  appearance.  But  that  again  does  not  apply  to  the 
appellate  court;  there,  it  is  believed,  counsel  could  always 
argue  for  the  accused.  Undoubtedly,  the  presence  of  the  ac- 
cused may  be  of  great  service  to  suggest  to  counsel  even  argu- 
ments of  law,  for  self  interest  often  excites  an  acuteness  of 
perception  in  the  client  which  the  learning  of  the  counsel  may 
have  failed  to  exhibit.  That  is  a  fair  argument  why  the  pri- 
soner should  be  present  even  in  those  cases,  but  not  an  argu- 
ment to  show  that  without  his  presence,  the  appellate  court  is 
without  jurisdiction. 

The  statute  authorizing  the  writ  of  error  in  behalf  of  the 
people  was  passed  March  22d,  1852.  A  motion  was  made  in 
the  court  of  appeals  to  dismiss  the  writ,  on  the  ground  that  by 
the  record,  as  made  up  for  that  court,  the  judgment  of  this 
court  purported  to  have  been  given  in  February  preceding; 
but  it  appeared  that,  although  the  argument  was  in  Febru- 
ary preceding,  yet,  in  fact  the  judgment  was  rendered  in  May, 
1852,  and  that  court  denied  the  motion.  That  decision  binds 
us  to  regard  the  writ  as  applicable  to  this  case.  It  was  also 
argued,  that  the  act  of  March  22,  1852,  gave  the  court  of 
appeals  power  only  to  review  the  judgment  of  the  supreme 
court,  and  not  to  reverse  or  modify  it;  and  it  was  argued  that 
the  appellate  court,  therefore  only  had  power  to  review  the 


WAYNE,  MAi,   1852. 


The  People  v.  The  Court  of  Sessions  of  Wayne. 


judgment  and  state  what  the  law  was,  and  that  on  the  new 
trial  the  law  thus  announced  should  be  declared  and  acted  on. 
But  that  court  has  practically  given  a  different  construction  to 
this  act  by  specially  directing  that  the  judgment  of  this  court 
be  reversed,  and  that  of  the  Oyer  and  Terminer  in  all  things 
affirmed,  and  that  the  record  be  remitted  to  this  court,  "  in 
order  that  this  court  may  direct  the  sentence  of  death  to  be  ex- 
ecuted." Nothing  remains  for  us  in  this  place,  but  to  execute 
the  law  as  it  is  declared  by  the  court  of  last  resort.  As  when 
we  reversed  the  judgment  of  Oyer  and  Terminer  we  would  not 
interfere  with  the  province  of  the  jury  by  discussing  the  ques- 
tion whether  in  fact  the  prisoners  were  guilty  or  not,  so  now 
we  will  not  depart  from  our  proper  sphere  by  expressing  in 
this  place  any  opinion  as  to  the  correctness  of  the  decision  of 
the  higher  court.  It  is  our  duty  to  obey  it;  and  we  do  so. 


SUPREME  COURT.     Cayuga  General  Term,  June,  1852.     Sclden, 
Strong  and  Johnson,  Justices. 

THE  PEOPLE  ex  rel.  WILLIAMS  vs.  THE  COURT  OF  SESSIONS  OF 
WAYNE  COUNTY. 

Courts  of  sessions,  as  authorized  under  the  judiciary  act  of  1847,  have  not 
power  to  grant  new  trials. 

Where,  in  a  court  of  sessions,  the  defendant  had  been  found  guilty  of  arson  in 
the  third  degree,  and  the  court  granted  a  new  trial  upon  the  merits,  and 
refused  to  pass  sentence  according  to  the  verdict,  it  was  held  lhat  the  granting 
of  a  new  trial  was  a  nullity,  and  a  mandamus  was  awarded  to  compel  the 
court  to  proceed  and  pass  sentence. 

Semble,  that  a  court  of  Oyer  and  Terminer  has  power  to  grant  new  trials.  Per 
JOHNSON,  J. 

This  was  an  application  for  a  mandamus  to  compel  the  court 
of  sessions  to  proceed  to  the  sentence  of  William  Case,  who 
was  convicted  in  said  court,  of  arson  in  the  third  degree.  Tho 
court  on  motion  of  the  defendant  granted  a  new  trial  upon  the 
merits  and  refused  to  pass  sentence  according  to  the  verdict. 

VOL.  I.  47 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Court  of  Sessions  of  Wayne. 


S.  K.  Williams,  (Dist.  Att'y,)  for  the  People. 
Jas.  E.  Smith,  for  the  defendant. 

By  the  Court,  JOHNSON,  J.  Courts  of  Sessions,  as  organized 
under  the  judiciary  act  of  1847,  are  courts  of  limited  and  infe- 
rior jurisdiction,  having  no  powers,  except  such  as  are  con- 
ferred by  statute,  like  the  former  courts  of  general  sessions  of 
the  peace.  In  the  case  of  The  People  v.  The  Justicee  of  the  Sess- 
sions  of  the  County  of  Chenango,  (1  Johns.  Cos.  180;  S.  C.,  2 
Caines*  Cas.  in  Error,  319,)  it  was  held  that  the  court  of  general 
sessions  of  the  peace  had  no  power  to  grant  a  new  trial  in 
criminal  cases  upon  the  m-erits. 

This  was  put  expressly  on  the  ground  that  the  court  was  a 
court  of  limited  and  inferior  powers,  incapable  of  doing  any 
act  or  of  exercising  any  authority  beyond  the  express  grant  of 
the  statute.  It  was  said  in  that  case  that  no  inferior  jurisdic- 
tion can  possess  this  power  of  granting  new  trials  without  an 
express  authority. 

The  same  judges  held  in  The  People  v.  Townsend,  (  1  Johns. 
Cas.  104,)  that  courts  of  Oyer  and  Terminer  may  grant  new 
trials.  There  seems'to  be  considerable  conflict  in  the  decisions 
in  this  state,  as  to  the  power  of  courts  of  Oyer  and  Terminer 
to  grant  new  trials  upon  the  merits.  (The  People  v.  Stone,  5 
Wend.  39;  The  People  v.  Comstock,  8  Wend.  549;  The  People 
v.  The  Judges  of  the  Dutchess  Oyer  and  Terminer,  2  Barb.  S.  C. 
282.)  But  there  is  no  conflict  as  to  the  power  of  courts  of 
sessions  The  rule  laid  down  in  The  People  v.  The  Justices  of 
Chenango,  has  been,  as  we  think,  universally  acquiesced  in,  and 
is  the  settled  law  of  this  state.  Courts  of  Oyer  and  Terminer 
have  full  criminal  jurisdiction  and  are  the  only  courts  in  the 
state  having  such  powers.  And  there  are  strong  reasons  in 
favor  of  the  exercise  of  this  power  by  the  court  of  Oyer  and 
Terminer,  which  do  not  apply  to  criminal  courts  of  inferior 
jurisdiction.  This  question  of  the  power  of  courts  of  Oyer 
and  Terminer  can  not  be  regarded  ?s  being  definitely  set- 
tled, and  we  are  inclined  to  think  the  better  opinion  is  that 


ONOXPAGA,   OCTOBER,   1852. 
The  People  ».  McJntyre. 


courts  of  Oyer  and  Terminer  are  clothed  with  this  power  and 
that  the  true  difference  in  the  power  of  the  two  courts  in  this 
respect,  is  that  of  full  jurisdiction  in  the  one,  and  qualified  and 
restricted  powers  in  the  other. 

The  court  of  sessions  should  have  proceeded  to  pass  sentence 
in  pursuance  of  the  conviction  and  their  award  of  a  new  trial 
was  a  nullity. 

A  mandamus  must,  therefore,  be  awarded. 


SUPREME  COURT.     Onondaga  General  Term,  October,  1852. 
W.  F.  Jlllen,  Hubbard  and  Pratt,  Justices. 

THE  PEOPLE  vs.  ALANSOX  MC!NTYRE. 

Where  two  or  more  persons  are  jointly  indicted  for  felony,  and  demand  separate 
trials,  they  have  not  a  right  to  elect  which  defendant  shall  be  tried  first. 

The  order  of  the  trials  in  such  case  is  within  the  control  of  the  district  at- 
torney, subject  to  the  direction  of  the  court;  and  as  a  general  rule,  the  court 
should  not  interfere  to  compel  the  district  attorney  in  regard  to  it. 

The  decision  of  the  court,  refusing  to  direct  the  district  attorney  in  such  case, 
is  not  the  subject  of  review  upon  exception. 

On  a  separate  trial  of  a  defendant  jointly  indicted  with  a  codefendant  for  felony, 
such  defendant  can  not  improve  his  codefendant  as  a  witness  in  his  behalf. 
Such  codefendant  is  not  a  competent  witness  for  the  defendant  on  trial  till 
discharged  from  the  record  by  nolle  prosequi.  acquittal  or  otherwise. 

The  defendant  and  Carrington  Mclntyre  were  jointly  in- 
dicted in  the  Madison  county  sessions  for  burglary  and  larceny 
and  demanded  separate  trials,  and  that  Carrington  Mclntyre 
should  be  first  tried.  A  separate  trial  was  granted,  but  the 
court  refused  to  compel  the  district  attorney  to  try  Mclntyre 
first;  to  which  refusal  the  defendant  excepted.  Upon  the  trial 
of  the  defendant,  his  codefendant  on  the  indictment  was  offered 
as  a  witness  in  his  behalf,  and  was  objected  to  on  the  ground 
that  he  was  jointly  indicted  with  the  defendant.  The  objection 
was  sustained  and  the  witness  excluded.  The  defendant  was 
convicted  and  brings  error  to  this  court 


372  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Mclntyre. 
D.  Brown,  for  defendant. 

W.  E.  Lansing,  (Dist.  Att'y),  for  the  People. 

By  the  Court,  W.  F.  ALLEN,  J.  It  was  a  matter  addressed 
to  the  sound  discretion  of  the  court  below  whether  they  would 
interfere  with  the  order  of  trial  of  the  persons  indicted.  The 
statute  secures  to  persons  jointly  indicted  for  a  felony  the  right 
of  separate  trials,  but  does  not  give  to  them  the  right  to  regu- 
late the  time  or  order  of  such  trials.  The  public  prosecutor 
controls  and  directs  on  these  matters,  subject  to  the  direction 
of  the  court  in  cases  calling  for  interference.  It  can  not  be 
assumed  by  any  court,  and  certainly  not  by  a  court  of  review, 
that  the  grand  jury  have  found  an  indictment  without  sufficient 
evidence  or  from  improper  motives,  or  that  the  public  prosecutor 
has  unworthily  procured  an  indictment  against  an  innocent  in- 
dividual and  delays  the  trial,  in  order  to  deprive  another  person 
indicted  for  the  same  offence  of  the  benefit  of  his  testimony. 
If  a  case  of  that  kind  should  be  brought  to  the  knowledge  of 
the  court,  it  can  not  be  doubted  that  measures  would  be  taken 
to  secure  to  the  persons  indicted  their  just  rights  and  fair  trials 
But  even  in  such  case  the  order  of  the  court  would  not  be  the 
subject  of  review  upon  exceptions.  (People  v.  Colt,  3  Hill, 
432.) 

The  decision  of  the  court  excluding  the  codefendant  as  a 
witness  for  the  defendant  upon  the  trial  is  properly  the  subject 
of  review  upon  error.  The  statute  provides  that  when  two  or 
more  defendants  shall  be  jointly  indicted  for  any  felony,  anyone 
defendant  requiring  it,  shall  be  tried  separately.  (2R.  S.  735, 
§20.)  Previous  to  this  statute,  persons  jointly  indicted  for 
offences  entitling  them  to  peremptory  challenges  were  entitled 
of  right  to  separate  trials,  and  a  separate  trial  of  persons  jointly 
indicted  might  in  all  cases  be  had  in  the  discretion  of  the  court. 
The  statute  therefore  restricts  the  discretion  of  the  court  in 
granting  or  withholding  separate  trials  to  indictments  for  of- 
fences less  than  felony,  but  does  not  affect  the  rights  of  the 
parties  or  the  rules  of  evidence,  in  cases  where  separate  trials 


ONONDAGA,  OCTOBER,   1852.  373 


The  People  v.  Mclntyre, 


are  hail  either  as  a  matter  of  right,  or  by  direction  of  the  court 
where  the  right  is  not  absolute.  The  statute  was  enacted  to 
conform  the  practice  to  the  opinion  of  the  court  in  The  People 
v.  Barber  (7  Cowen,  108;  Revisers'  Notes,  3  R.  S.  849).  The 
right  to  a  separate  trial  by  no  means  determines  the  right  of 
one  defendant  to  improve  his  codefendant  as  a  witness  in  his 
behalf.  This  can  only  be  done  by  discharging  him  from  the 
record;  as  by  the  entry  of  a  nolle  prosequi,  or  by  an  order  for 
his  dismissal  and  discharge,  or  by  a  verdict  of  acquittal,  where 
no  evidence  or  no  sufficient  evidence  has  been  adduced  against 
him.  (iGreenl.Ev.  §363;  Roscoe  Cr.  Ev.  1412;  2  Russ. 
on  Cr.  968,  969;  State  v.  Moony,  1  Yerger,  451 ;  Commonwealth 
v.  Marsh,  10  Pick.  57;  People  v.  Bell,  10  John.  R  95;  People 
v.  Williams,  19  W.  R.  377).  The  rule  is  too  well  established 
to  be  disturbed  by  this  court,  and  the  reasons  assigned  for  it 
are  satisfactory.  The  rights  of  individuals  charged  with  crime 
are  not  endangered  by  the  rule.  The  defendants  jointly  indicted 
may,  at  their  option,  be  jointly  tried;  and  if  upon  the  trial  there 
shall  be  no  evidence,  or  but  slight  evidence,  against  one  of  the 
parties  indicted,  he  may  be  discharged  or  his  case  submitted  to 
and  passed  upon  by  the  jury  to  enable  the  other  defendants  to 
call  him  as  a  witness. 

The  provisions  of  the  code  have  no  application  to  criminal 
proceedings. 

The  judgment  of  the  court  below  is  affirmed. 


374 


DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     Albany  General  Term,  February,  1853. 
Watson,  Parker  and  Harris,  Justices. 

JONAS  H.  MILLER  vs.  GEORGE  I.  FINKLE. 

The  statute  requiring  the  court  to  limit  the  time  of  sentence  of  a  convict,  so 
that  his  imprisonment  in  the  state  prison  shall  expire  between  March  and 
November,  is  merely  directory,  and  a  failure  to  comply  with  such  require- 
ment does  not  render  the  sentence  void. 

If,  by  inadvertence  in  passing  sentence,  a  requirement  of  the  statute  has  been 
overlooked,  the  court  may  correct  the  judgment  at  the  same  term  and  before 
the  sheriff  has  proceeded  to  execute  it.  Such  correction  may  be  made  by 
expunging  or  vacating  the  first  sentence  and  passing  a  new  sentence. 

The  disqualification  consequent  upon  a  sentence  by  which  all  the  civil  rights  of 
the  person  sentenced  are  suspended,  commences  as  does  the  running  of  the 
time  of  imprisonment,  from  the  moment  of  passing  sentence. 

The  effect  of  vacating  a  sentence  and  pronouncing  a  new  sentence  at  the  same 
term,  is  the  same  upon  the  civil  rights  of  the  defendant,  as  if  the  first  judg- 
ment had  been  reversed  on  error,  and  the  defendant  had  been  again  convicted 
on  a  second  trial. 

Where  a  defendant  was  sentenced,  so  that  his  term  of  imprisonment  in  the  state 
prison  would  expire  in  December,  and  afterwards,  at  the  same  term, 
the  sentence  was  vacated  and  a  new  sentence  was  pronounced  for  a 
shorter  term,  but  so  that  it  would  expire  in  October,  and  the  defendant 
after  the  first  sentence  and  before  the  second  sentence,  executed  an  assign- 
ment of  his  book  accounts  to  another  person,  it  was  held  that  such  assign- 
ment was  valid. 

This  was  an  appeal  from  the  county  court  of  tfee  county  of 
Columbia.  The  action  was  brought  originally  in  a  justice's 
court  to  recover  upon  a  note  for  $'50  and  interest. 

The  defendant  in  his  answer  claimed  the  right  to  set  off 
against  the  plaintiffs  demand  certain  balances  of  account, 
which  the  plaintiff  had  formerly  owed  to  Peter  Finkle  and 
Calvin  Finkle,  and  which  had  been  assigned  to  the  defendant 
before  suit  brought.  The  plaintiff  recovered  before  the  justice 
and  the  defendant  appealed  to  the  Columbia  county  court 
where  the  cause  was  referred  to  Darius  Peck,  Esq.,  as  referee, 
who  reported  nothing  due  to  the  plaintiff,  and  the  county  court 
on  motion  refused  to  set  aside  the  report. 

On  the  trial  before  the  referee,  it  appeared  that  said  Calvin 


ALBANY,  FEBRUARY,  1853.  375 


Miller  e.  Finkle. 


and  Peter  Finkle  were,  on  the  18th  day  of  June,  1847,  tried 
before  the  court  of  General  Sessions  of  Columbia  County  and 
convicted  of  a  felony,  and  on  the  day  last  aforesaid,  were  seve- 
rally sentenced  to  imprisonment  in  the  state  prison  for  three 
years  and  six  months.  This  sentence  was  entered  in  the  min- 
utes of  the  court.  On  the  next  day,  that  is  to  say,  on  the  19th 
day  of  June,  1847,  the  clerk  by  directions  of  the  court  made  an 
entry  in  the  minutes  immediately  below  the  sentence  aforesaid, 
expunging  said  sentence  and  thereupon  proceeded  to  sentence 
said  Calvin  and  Peter  Finkle  anew,  for  the  term  of  three  years 
and  four  months,  which  last  sentence  was  entered  by  the  clerk; 
and  under  a  certified  copy  thereof  said  Calvin  and  Peter  Finkle 
were  taken  by  the  sheriff  to  the  state  prison.  The  correcting 
of  the  sentence  was  made  in  consequence  of  the  court  discover- 
ing that  the  imprisonment  under  the  senlence  as  at  first  pro- 
nounced would  not  terminate  at  the  season  of  the  year  prescribed 
by  law; 

1  On  the  19th  day  of  June,  1847,  after  the  first  sentence  and 
before  it  was  altered,  Calvin  and  Peter  Finkle  made  the  assign- 
ments of  their  accounts  to  the  defendant;  and  the  question  pre- 
sented was,  whether  the  civil  rights  of  Calvin  and  Peter 
Finkle  were  suspended  at  that  time,  so  as  to  vitiate  such  as- 
signments. 

E.  P.  Cowles,  for  plaintiff. 
Theo.  Miller,  for  defendant. 

By  the  Court,  PARKER,  J.  — It  was  provided  by  the  statute 
of  1836  (Laics  of  1836,  page  230,  §  6),  that  in  cases  where 
convicts  shall  be  sentenced  to  be  imprisoned  in  the  state  prison 
for  a  longer  period  than  two  years,  "  the  court  before  whom 
the  conviction  shall  be  had  shall  so  limit  the  time  of  sentence, 
that  it  will  expire  between  the  month  of  March  and  the  month 
of  November,  unless  the  exact  period  of  the  sentence  may  be 
fixed  by  law."  The  sentence  pronounced  against  Calvin  and 
Peter  Finkle  was  not  in  accordance  with  this  requirement.  It 


370  DECISIONS  li\  CRIMINAL  CASES. 


Miller  v.  Finkle. 


was  a  sentence  for  two  years  and  six  months,  and  under  it,  the 
imprisonment  would  have  terminated  in  December.  The  de- 
fendant's counsel  argues  that  the  sentence  was  therefore  void. 
But  that  position  is  not  tenable.  The  statute  is  merely  direct- 
ory. There  was  no  want  of  jurisdiction.  The  time  for  which 
they  were  sentenced  was  within  the  limit  prescribed  by  the 
act  for  the  punishment  of  the  offence.  The  sentence  of  the 
18th  June,  therefore,  notwithstanding  the  neglect  to  comply 
with  the  requirement  of  the  act  of  1836,  was  binding  and  ope- 
rative, unless  it  was  rendered  otherwise  by  the  subsequent 
proceedings. 

On  the  19th  day  of  June,  the  court  having  discovered  the 
error,  ordered  the  sentence,  which  had  been  pronounced  on  the 
day  preceding,  to  be  expunged,  and  the  order  was  entered 
accordingly.  The  court  then  proceeded  to  sentence  the  prison- 
ers to  an  imprisonment  of  two  years  and  four  months,  a  certi- 
fied copy  of  which  last  sentence  was  delivered  to  the  sheriff, 
under  which  they  were  imprisoned  in  the  state  prison.  This 
proceeding  was  in  effect  vacating  the  judgment  first  pronounced; 
and  it  is  necessary  to  consider  whether  the  court  had  power  to  do 
so  and  what  was  its  legal  effect  upon  the  transaction  in  question. 

The  courts  certainly  have  not  the  power  to  pardon.  That  is 
vested  by  the  constitution  exclusively  in  the  governor.  But 
courts  have  power  over  their  own  records  and  judgments,  which 
may  be  exercised  in  certain  cases  and  to  a  certain  extent. 
This  by  no  means  infringes  upon  the  power  of  pardon.  The 
courts  can  not  forgive  or  remit,  or  absolve  from  the  consequen- 
ces of  a  criminal  judgment.  But  they  may  see  that  the  judg- 
ment itself  is  in  conformity  to  law.  Thus,  they  may  reverse 
on  error,  or  review  on  certiorari.  If,  by  inadvertence  in  pro- 
nouncing a  sentence,  a  requirement  of  the  statute  has  been 
overlooked,  it  may  be  corrected  by  the  same  tribunal,  before 
further  action  is  taken. 

I  think  it  a  safe  rule  to  lay  down,  that  a  court  of  criminal 
jurisdiction  may  vacate  or  modify  a  judgment  at  the  same  term 
at  which  it  is  pronounced,  and  before  the  sheriff  has  proceeded 
to  execute  it. 


ALBANY,  FEBRUARY,  1853.  377 

Miller  v.  Finkle. 

In  King  v.  Price  et  al.  (6  East  R.  322),  the  defendants  had 
been  convicted  of  perjury  and  sentenced  to  imprisonment  for 
one  month  and  transported  beyond  seas  seven  years.  After- 
wards, at  the  same  term,  the  court  vacated  the  judgment 
(which  Lord  Ellenborough  observed  might  be  done  at  any  time 
within  the  said  term),  and  passed  a  different  sentence,  viz.: 
that  each  should  pay  £20,  and  be  imprisoned  in  Newgate  six 
months  and  be  afterwards  transported  for  six  years.  The  cor- 
rectness of  such  a  practice  was  also  recognized  by  the  king's 
bench  in  King  v.  Justices  of  Leicestershire  ( 1  Maul.  Sf  Selw. 
442),  and  have  been  acted  on  in  other  cases.  ( 1  Chitty's  Cr. 
L.  772.) 

I  think  the  court  therefore  had  the  right  to  expunge  or 
vacate  the  first  sentence,  and  to  pass  a  new  sentence;  that 
the  first  sentence  became  void  and  inoperative,  and  the  second 
sentence  a  valid  and  binding  judgment:  as  much  so  as  if  the 
first  sentence  had  been  reversed  on  error,  and  the  second  sen- 
tence had  been  pronounced  after  a  conviction  upon  a  second 
trial. 

The  next  question  to  be  considered  is,  what  was  the  effect  of 
the  first  sentence  upon  the  assignments  to  the  defendant?  At 
the  time  these  assignments  were  executed,  the  first  sentence 
was  in  full  force.  The  statute  provides  (2  R.  S.  701,  §  19), 
that  "  a  sentence  of  imprisonment  in  the  state  prison  for  any 
term  less  than  for  life  suspends  all  the  civil  rights  of  the 
person  so  sentenced,  and  forfeits  all  public  offices  and  all 
private  trusts,  authority  or  power,  during  the  term  of  such 
imprisonment."  This  disqualification  commences,  as  does  the 
running  of  the  time  of  the  imprisonment,  from  the  moment  of 
passing  sentence.  If,  therefore,  the  sentence  had  not  been 
vacated,  the  assignments  would  have  been  void,  the  assignors 
being  incompetent  to  execute  such  instruments. 

But  what  was  the  effect  of  the  vacating  of  the  sentence?  I 
think  it  was  precisely  the  same  as  if  the  sentence  had  been 
reversed  on  writ  of  error.  When  a  judgment  is  reversed,  all 
proceedings  and  sale.'  under  and  by  virtue  of  it  are  void  at 
common  law  (6  Cowen  R.  297;  8  Paige,  143,  9  do.  635),  and 

VOL.  I.  48 


378  DECISIONS  IN  CRIMINAL  CASES. 

Gahagan  v.  The  People. 

it  has  been  deemed  necessary  to  provide  by  statute  (2  R.  S 
375,  sec.  68),  that  in  cases,  where  the  title  to  real  estate  which 
shall  have  been  sold  under  a  judgment  shall  fail  in  consequence 
of  such  judgment  having  been  vacated  or  reversed,  the  pur- 
chaser  shall  have  his  action  against  the  party  for  whose  benefit 
the  real  estate  was  sold  to  recover  the  amount  paid  on  the 
purchase  thereof  with  interest.  This  enactment  was  necessary 
for  the  protection  of  the  purchaser,  for  the  reason  that  the  pro- 
ceedings were  void. 

The  vacating  of  the  sentence  rendered  it  inoperative  from 
the  time  it  was  pronounced,  so  that  it  could  not  invalidate  the 
assignments  in  question. 

I  think,  therefore,  the  setoff  was  properly  allowed,  and  that 
the  judgment  of  the  county  court  should  be  affirmed. 

Judgment  affirmed. 


SUPREME  COURT.     Albany  General  Term,  February,  1853. 
Watson^  Parker  and  Wright,  Justices. 

JAMES  GAHAGAN  pl'ff  in  error  vs.  THE  PEOPLE  def'ts  in  error. 

On  the  trial  of  an  indictment  for  bigamy,  the  confessions  of  the  defendant, 
though  supported  by  proof  of  cohabitation  and  reputation,  are  not  sufficient 
to  establish  the  first  marriage :  proof  of  actual  marriage,  either  by  the  record 
or  by  the  evidence  of  an  eye  witness,  is  requisite. 

This  cause  came  up  on  writ  of  error  to  the  court  of  sessions 
of  the  county  of  Albany.  The  defendant  was  indicted  in  that 
court  for  bigamy,  as  follows: 

The  jurors,  £c.,  &c.,  do  present: 

That  James  Gahagan,  late  of  the  town  of  Watervliet,  in  the 
county  of  Albany,  aforesaid,  on  the  first  day  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-two,  at 
the  parish  of  Dumklief,  in  the  town  of  Kearney  and  county  of 
Sligo,  in  Ireland,  in  the  kingdom  of  Great  Britain,  did  marry 
one  Bridget  McCarty,  and  her  the  said  Bridget  McCarty  did 


ALBANY,  FEBRUARY,   1853  379 

Gahagan  v.  The  People. 

then  and  there  have  for  his  wife,  and  that  the  said  James  Ga- 
hagan  afterwards,  viz.,  on  the  first  day  of  July,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-two,  with  force 
and  arms,  at  the  town  of  Watervliet,  in  the  county  of  Albany, 
feloniously  did  marry  and  take  as  his  wife,  one  Rebecca  S. 
Noice,  and  to  the  said  Rebecca  Noice,  was  then  and  there 
married,  (the  said  Bridget  McCarty  being  then  and  there  living 
and  in  full  life,)  against  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  of  the  people  of  the 
state  of  New  York  and  their  dignity. 

The  defendant  having  pleaded  not  guilty,  the  issue  came  on 
for  trial  before  said  court,  on  the  fourteenth  day  of  December, 
1852. 

To  maintain  the  issue  on  the  part  of  the  people,  Catharine 
McCarty  was  called  as  a  witness  and  testified:  That  she  was  at 
home  at  the  parish  of  Dumklief,  town  of  Kearney,  in  the  county 
of  Sligo,  Ireland,  when  the  prisoner  and  the  sister  of  the  wit- 
ness, Bridget  McCarty,  came  in  on  one  Friday  night,  at  the 
house  of  witness's  mother,  and  said  they  were  going  to  get 
married,  and  went  to  get  married.  That,  when  they  came  back, 
they  said  they  had  been  married  by  a  priest,  whose  name  they 
mentioned,  but  that  she  had  forgotten  what  the  name  was. 
That  the  prisoner  and  said  Bridget  lived  together  after  that  as 
man  and  wife.  That  they  had  one  child  in  Ireland  and  five  in 
this  country;  that  the  name  of  the  child  born  in  Ireland  is  Ellen 
and  that  she  is  now  in  this  country.  That  the  prisoner  and  said 
Bridget  have  lived  together  in  Whitehall  in  this  state,  and  that 
said  Bridget  was  then  in  the  almshouse  in  Washington  county. 

On  cross-examination,  the  witness  said  she  was  nineteen 
years  of  age;  had  been  six  or  seven  years  in  this  country;  had 
heard  that  her  sister  Bridget  was  still  living,  but  had  not  seen 
her  in  three  or  four  years;  that  she  knew  she  was  living,  and 
had  heard  from  her  two  months  previously  by  way  of  a  man 
coming  from  Whitehall;  that  she  sent  for  some  money  by  him. 

The  counsel  for  the  prisoner,  in  due  time,  objected  to  the 
admission  of  each  and  every  part,  separately,  of  the  evidence 
of  Catharine  McCarty,  on  the  grounds: 


380  DECISIONS  IN  CRIMINAL  CASES. 

Gahagan  v.  The  People. 

1.  That,  in  order   to  prove  the  first  marriage  in  a  case  of 
bigamy,  it  was  necessary  to  produce  the  marriage  record,  or  a 
certified  copy  thereof,  or  some    one  present  at  the  marriage 
ceremony. 

2.  That  the  declarations   and  admissions  of  the  prisoner  of 
the  first  marriage  and  evidence  of  cohabitation  with  the  first 
wife  are  incompetent  and  inadmissible  to  prove  the  first  marriage. 

3.  That  the  declarations  and  admissions  of  prisoner  do  not 
dispense  with  the  production  of  the  record. 

Which  objections  were  overruled  by  the  court,  and  the  evi- 
dence allowed,  and  defendant's  counsel  duly  excepted. 

Thomas  B.  Richards,  being  called  on  the  part  of  the  people, 
and  duly  sworn,  said:  "I  am  one  of  the  constables  of  West 
Troy;  I  know  the  prisoner;  I  arrested  the  prisoner.  Prisoner 
told  me  he  was  married  to  Bridget  McCarty.  I  know  Bridget 
McCarty;  I  saw  her  in  Washington  county  poorhouse,  in  Ar- 
gyle,  about  three  or  four  weeks  ago.  Prisoner  told  me  he  had 
a  wife  there;  prisoner  told  me  he  had  another  wife  at  White- 
hall, in  the  poorhouse.  He  did  not  tell  me  in  what  country  he 
married  her." 

The  evidence  of  Thomas  B.  Richards  was  also,  in  due  time, 
objected  to,  in  each  and  every  particular  separately,  by  counsel 
for  prisoner,  on  the  grounds: 

That  the  admission  and  confession  of  prisoner  were  incom- 
petent and  inadmissible  to  prove  the  first  marriage. 

The  objection  was  overruled  by  the  court,  and  the  evidence 
received,  and  defendant's  counsel  duly  excepted. 

John  W.  Burns,  being  called  on  the  part  of  the  people,  and 
being  duly  sworn,  said:  "I  am  a  justice  of  the  peace,  living  at 
West  Troy;  I  married  the  prisoner  to  one  Rebecca  Sophia  Noice, 
in  December  last,  in  William  Van  Olinda's  office;  Van  Olinda 
was  present  and  signed  certificate. 

The  evidence  of  John  W.  Burns,  to  prove  second  marriage, 
was  also,  in  due  time,  objected  to  by  counsel  for  prisoner,  on 
the  grounds: 

1.  That  the  prior  marriage  had  not  been  sufficiently  and  le- 
gally proved,  as  charged  in  the  indictment. 


ALBANY,   FLURUARY,  1833. 


Gahagan  v.  The  People. 


2.  That  the  first  marriage  had  not  been  proved  to  have  been 
solemnized  in  due  form  of  law.  , 

The  court  overruled  the  objections  aforesaid,  and  held  that 
the  question  as  to  whether  the  first  marriage  had  been  suffi- 
ciently proved,  was  a  question  of  fact  for  the  jury. 

To  which  rulings  of  the  court,  the  counsel  for  the  prisoner 
then  and  there  duly  excepted. 

The  counsel  for  the  people,  farther  to  maintain  the  issue  on 
the  part  of  the  people,  called,  as  a  witness, 

Nicholas  Hallenbeck,  who,  being  duly  sworn,  said:  "  I  am 
the  jailor  of  Albany  county;  prisoner  sent  this  letter;  it  was 
given  to  me  by  the  prisoner,  requesting  that  I  should  send  it 
to  his  wife." 

The  counsel  for  the  prisoner  objected  to  the  introduction  of 
this  letter,  as  evidence,  on  the  grounds: 

That  the  acknowledgments  and  confessions  or  declarations 
of  prisoner  are  incompetent  and  inadmissible. 

The  court  overruled  the  objection  and  admitted  the  evidence. 
To  which  ruling  of  the  court,  prisoner's  counsel  duly  excepted. 

The  district  attorney  then  read  the  said  letter  to  the  court 
and  jury,  in  which  letter  the  defendant  admitted  he  was  the 
husband  of  said  Bridget,  to  whom  it  was  addressed,  and  to 
whom  he  excused  his  getting  married  the  second  time  on  the 
ground  that  he  was  drunk.  The  letter  was  dated  twenty-se- 
venth November,  1852,  and  was  directed  to  Bridget  Gahagan, 
care  of  Mr.  Hopkins,  Argyle,  Washington  county. 

The  cause  was  then  rested  on  the  part  of  the  people,  and  the 
counsel  for  the  prisoner  moved  that  the  court  discharge  the 
prisoner  on  the  grounds: 

1.  That  the  evidence  was  not  sufficient  to  go  to  the  jury. 

2.  That  there  was  a  variance  as  to  the  time  of  the  alleged 
first  marriage  set  forth  in  the  indictment  and  the  proof  thereof. 

The  court  refused  to  discharge  the  prisoner,  and  held  the 
evidence  sufficient  for  the  consideration  of  the  jury. 

No  evidence  was  offered  on  the  part  of  the  prisoner,  and  the 
court  thereupon  charged  the  jury  as  follows: 

That,  before  the  jury  could  convict  the  prisoner,  they  must 


382 


DECISIONS  IN  CRIMINAL  CASES. 


Gahagan  v.  The  People. 


be  satisfied  that  the  prisoner  was  married. to  Bridget  McCarty 
in  Ireland,  as  charged  in  the  indictment,  and  that  such  mar- 
riage was  a  lawful  one,  according  to  the  laws  of  that  country; 
that  to  establish  such  fact,  the  jury  might  take  into  considera- 
tion the  statements  made  by  the  prisoner  on  the  several  occa- 
sions referred  to  by  the  witnesses,  together  with  the  letter 
written  by  the  prisoner  after  his  confinement  on  the  charge; 
that  when  the  first  marriage  takes  place  in  a  foreign  country, 
the  defendant's  confession  is  evidence  to  go  to  the  jury  to  prove 
the  same,  but  that  the  jury  must  be  clearly  satisfied  that  such 
confession  proves  the  fact  of  such  marriage,  before  they  will 
be  warranted  in  convicting,  provided  a  second  marriage  be 
proved. 

That  the  jury  must  also  be  satisfied  that  the  second  marriage 
has  been  legally  proved,  and  that  the  first  wife  was  living  at 
its  consummation.  There  would  seem  to  be  no  question  upon 
these  points,  if  the  people's  witnesses  were  to  be  credited; 
however,  that  was  a  question  for  the  jury. 

The  defendant's  counsel  requested  the  court  to  charge  the 
jury  that  the  evidence  on  the  part  of  the  people  was  merely 
presumptive  of  a  marriage  in  fact,  as  it  regarded  the  first  mar- 
riage, and  that  it  did  not  prove  an  actual  marriage;  and  that  in 
order  to  prove  the  first  marriage,  it  was  necessary  to  produce 
the  record  of  the  marriage  or  a  certified  copy  thereof,  or  some 
one  present  at  the  marriage  ceremony;  and  that  the  confessions 
or  declarations  of  the  prisoner,  and  cohabitation  with  his  first 
wife,  were  merely  presumptive  of  a  marriage  in  fact. 

The  court  declined  so  to  charge,  and  held  the  evidence  pro- 
per for  the  consideration  of  the  jury;  and  prisoner's  counsel 
excepted  thereto  and  to  each  and  every  part  of  the  charge  as 
above  set  forth. 

The  jury  found  the  prisoner  guilty,  and  he  was  sentenced  to 
imprisonment  in  the  state  prison  at  Auburn,  for  the  term  of  four 
years  and  nine  months. 

/.  Ji.  Bloomingdale,  for  the  prisoner,  made  the  following 
points: 


ALBANY,  FEBRUARY,  1853. 


Gahagan  v.  The  People. 


I.  It  is  necessary  to  prove  the  prior  marriage  in  a  case  of 
bigamy  by  direct  and  positive  proof.    (  1  Russ   on  Cr.  186  and 
note-,  15  Mass.  163;  3  Star/tie  Ev.  893;  2  do.  781.) 

II.  The  declarations   or  admissions  of  defendant  of  his  first 
marriage  and  evidence  of  cohabitation  with  first  wife,  are  in- 
admissible to  prove  the  same.     (4  Comst.  230,  246;  4  Johns. 
51;  6  Conn.  R.  446;  Swift's  Ev.   140;  Swift's  Dig.  501;  19 
Maine,  155;  7  Johns.  314.) 

Ill  It  is  necessary  to  show  that  the  foreign  marriage  was 
solemnized  in  due  form  of  law.  (10  East.  282.)  The  law  will 
not  presume  a  valid  marriage  as  in  civil  cases.  (Russ.  Sf  Ry. 
c.c.  109;  1  Phill  257;  Jacobs'  Cases,  1;  Moody,  c.  c.  109.) 

IV.  That  the  identity  of  the  first  wife  must  be  proved  by 
some  one  present  at  the  marriage  ceremony.     (9  Mass.  Rep. 
449;  8  Greenl.  R.  75.) 

V.  The  evidence  of  the  first  marriage  is  not  sufficient  to 
convict. 

T.  C.  Sears,  for  the  people,  claimed  that  the  declarations 
given  in  evidence  were  admissible  and  sufficient,  and  cited  1 
East.  P.  C.  470;  1  Car.  &  Kir.  164;  2  Cow.  #  Hill's  Notes, 
1148;  1  Ashmmd,  272;  16  Ohio  R.  173;  3  Rich.  £.434;  11 
Maine,  391;  8  Serg.  &  Rawl.  159.) 

By  the  Court,  PARKER,  J.  —  The  rule  is  not  controverted  as 
laid  down  in  Kent  (2  Kent's  Com.  53)  and  in  other  elementary 
writers,  that  marriage  may  be  inferred  from  continual  cohabit- 
ation and  reputation  as  husband  and  wife,  except  in  cases  of 
civil  actions  for  adultery  or  in  public  prosecutions  for  bigamy 
and  adultery,  when  actual  proof  of  the  marriage  is  required. 
But  it  is  contended  that  the  admissions  of  the  defendant  are  of 
such  a  positive  character  as  to  be  properly  received  to  establish 
his  marriage,  even  in  the  cases  above  excepted,  and  the  deci- 
sions have  been  conflicting  upon  the  questions,  whether  such 
declarations  are  admissible,  and  if  so,  whether  they  are  suf- 
ficient, when  deliberately  made,  to  establish  the  fact  of  mar- 
riage. 


384 


DECISIONS  IX  CRIMINAL  CASES. 


Gahagan  v.  The  People. 


In  Maine  such  evidence  has  been  received.  Cayford's  case. 
(?  Greenl.  57)  was  an  indictment  for  lewd  and  lascivious  co. 
habitation,  and  confessions  of  having  been  married  in  England 
were  received  as  sufficient  proof  of  the  fact;  and  in  Ham's  case 
(2  Fairf.  391)  it  was  held,  that  on  the  trial  of  one  indicted  for 
bigamy,  adultery,  or  lascivious  cohabitation,  the  marriage, 
whether  solemnized  in  that  state  or  otherwise,  might  be  proved 
by  the  deliberate  confession  of  the  defendant.  Both  these  cases 
are  cited  and  approved  in  The  State  v.  Hodgkins  (19  Maine  R. 
155.) 

The  same  doctrine  was  held  in  Pennsylvania,  in  Murtagh's 
case,  (1  Jlshmead,  272,)  which  was  an  indictment  for  bigamy, 
and  in  Forney  v.  Hallacher,  (8  Serg.  fy  Rawle,  159,)  which  was 
an  action  for  crim.  con.;  and  in  Virginia,  in  Warner's  case,  (2 
Virg.  cases,  95,)  which  was  an  indictment  for  bigamy — in 
South  Carolina,  in  Britton's  case,  (4  McCord,  256,)  and  Hilton's 
case,  (3  Rich.  R.  434,)  both  of  which  were  indictments  for 
bigamy — in  Ohio,  in  Wolverton's  casey  (16  Ohio,  173,)  which 
was  also  an  indictment  for  bigamy.  In  Regina  v.  Simmon-sto, 
(1  Carr.  fy  Kirwan,  167;  43  Eng.  Com,  Law,)  which  was  also  an 
indictment  for  bigamy,  it  was  held  in  England  that  the  first 
marriage  might  be  proven  by  the  admissions  of  the  prisoner. 

A  different  rule  is  well  established  in  other  states.  In  Mas- 
sachusetts, such  evidence  is  held  to  be  insufficient.  In  the  case 
of  The  Commonwealth  v.  Simeon  Littlejohn  and  Margery  Barb- 
arick,  (15  Mass.  R.  163,)  indicted  for  lewdly  and  lasciviously 
associating  and  cohabiting  together,  the  latter  being  alleged  to 
be  the  wife  of  Thomas  Barbarick,  a  sister  of  said  Thomas  tes- 
tified that  about  twelve  years  previous,  said  Thomas  and  Mar- 
gery left  the  house  of  the  witness  for  the  declared  purpose  of 
going  to  the  house  of  a  clergyman,  about  two  miles  distant,  in 
order  to  be  by  him  joined  in  marriage;  that  after  an  absence 
sufficient  for  that  purpose  they  returned,  declaring  that  they 
were  married,  and  that  they  lived  together  as  man  and  wife, 
having  several  children,  until  a  year  previous  to  the  trial.  The 
jury  found  the  defendant  guilty,  but  it  was  resolved  by  the 
whole  court  that  the  evidence  was  insufficient;  that  it  was  not 


ALBANY,  FEBRUARY,  1853.  3,5 

Gahagan  v.  The  People. 

the  best  of  which  the  case  admitted;  that  if  those  persons  were 
married,  it  could  be  proved  by  the  record  of  the  clergyman,  or, 
at  any  rate,  by  the  testimony  of  persons  actually  present  and 
the  \  erdict  was  set  aside.  The  evidence  introduced  to  prove 
marriage  in  that  case  was  very  much  like  that  in  the  case  be- 
fore us. 

It  was  decided  in  the  state  of  Connecticut,  in  Roswell's  case 
(6  Conn.  R.  446),  which  was  an  information  for  incest  alleged 
to  have  been  committed  by  the  prisoner  with  his  legitimate 
daughter,  that  an  actual  marriage  between  the  prisoner,  and 
such  daughter's  mother  must  be  proved;  and  that,  for  that  pur- 
pose, neither  cohabitation,  reputation,  nor  the  confessions  of 
the  prisoner  were  admissible.  In  that  case,  the  subject  was 
very  fully  and  carefully  examined,  in  the  opinion  of  the  court. 
See  also  Swift's  Ev.  140;  Swift's  Dig.  501,  for  the  law  in  that 
state. 

In  this  state,  as  early  as  4  Johns.  Rep.  51,  it  was  held  in 
Fenton  v.  Reed,  that  strict  proof  of  actual  marriage  was  only 
required  in  cases  of  bigamy  and  in  actions  for  criminal  conver- 
sation; and  that  in  other  cases,  marriage  might  be  proved  from 
cohabitation,  reputation,  acknowledgment  of  the  parties,  re- 
ception in  the  family,  and  other  circumstances  from  which  a 
marriage  might  be  inferred. 

In  The  People  v.  Humphrey,  (7  Johns.  R.  314),  the  question 
came  directly  before  the  supreme  court  in  an  indictment  for 
bigamy.  The  prisoner  had  been  found  guilty  on  his  voluntary 
acknowledgment  of  his  former  marriage.  But  the  court  held 
it  insufficient  evidence,  citing  Morris  v.  Miller,  (4  Burr.  2056,) 
where  Lord  Mansfield  held,  that  in  prosecutions  for  bigamy,  as 
well  as  in  actions  for  critn.  con.,  a  marriage  in  fact  must  be 
proved,  and  Birt  v.  Barlow  (Doug.  171.) 

The  correctness  of  this  rule  is  recognized  in  the  opinions 
delivered  in  the  late  case  of  Clayton  v.  Wardell  (4  Comst.  Rep. 
230.) 

Whatever,  therefore,  may  be  the  rule  of  evidence  in  other 
states,  I  think  we  are  bound  in  this  state  by  the  decision  in 
The  People  v.  Humphrey,  which  is  directly  in  point. 

VOL.  I.  49 


DECISIONS  IX  CRIMINAL  CASES. 


Gahagan  w.  The  People. 


In  one  respect  the  decisions  agree,  viz.,  that  public  prose- 
cutions for  bigamy,  incest  and  adultery,  and  f.he  single  civil 
action  for  crim.  con.,  all  stand  on  the  same  footing,  and  are 
governed  by  the  same  rule  of  evidence.  If  admissions  are  ade- 
quate evidence  in  one,  they  are  in  all  of  these  cases. 

It  has  not  been  decided  in  this  state,  that  confessions  of  the 
marriage  are  not  admissible,  but  that  they  are  insufficient  to 
prove  the  fact.  I  do  not  see  upon  what  principle  they  can  be 
excluded,  and  though  insufficient  of  themselves  to  prove  mar- 
riage, even  when  aided  by  proof  of  cohabitation  and  reputation, 
yet  they  may  be  important  evidence,  and  I  think  they  are  in  all 
cases  competent.  They  corroborate  the  positive  evidence  of 
an  eye  witness  to  the  marriage.  They  strengthen  the  proof 
of  the  identity  of  the  parties,  or  of  the  clergyman  or  officei 
officiating;  and  they  add  to  the  weight  and  certainty  of  tht 
proof  whether  the  marriage  be  proved  by  the  record  or  by  one 
present.  It  is  the  right,  I  think,  of  the  party  prosecuting,  to 
avail  himself  of  the  statements  voluntarily  made  by  the  defend- 
ant, as  to  any  material  fact  in  issue.  But  it  is  competent  foi 
the  court,  in  its  vigilant  care  for  the  rights  of  a  party,  to  re- 
quire the  highest  and  most  satisfactory  evidence  of  the  fact  in 
issue,  especially  in  a  criminal  prosecution.  In  questions  of 
title  to  land  the  parol  admission  of  a  party  is  not  sufficient  to 
show  he  has  parted  with  real  property.  The  law  exacts  the 
better  and  higher  evidence  of  a  deed.  And  it  is  always  com- 
petent, and  no  violation  of  principle,  for  the  law  to  prescribe 
what  kind  of  evidence  shall  be  required  to  establish  a  fact. 

I  see  no  reason  for  making  a  distinction  between  cases  of 
marriage  in  a  foreign  country  arid  marriage  in  this  state.  A 
careful  examination  of  the  decisions  shows  that  none  has  really 
been  recognized.  The  fact  is  equally  important  to  the  defend- 
ant, whether  alleged  to  have  taken  place  here  or  in  a  foreign 
country,  and  calls  for  the  same  grade  of  evidence  The  same 
kind  of  evidence  is  required  to  prove  the  signature  to  a  note 
executed  in  Ireland  as  if  it  were  executed  in  this  state,  and  so 
of  every  other  fact  necessary  to  be  established  on  a  trial.  The 
peril  of  the  defendant  should  not  be  increased,  because  of  the 


MONROE,  MARCH,    ;&';2. 


The  People  v.  McGinnis.. 


difficulty  of  obtaining  proof.     That  is  a  misfortune  that  should 
fall  on  the  prosecution,  if  upon  either  party. 

I  think  the  court  below  erred  in  holding  that  there  was  suf- 
ficient proof  of  the  first  marriage  to  submit  the  question  to  the 
jury,  and  that,  for  that  reason,  the  judgment  of  the  sessions 
should  be  reversed  and  a  new  trial  awarded. 

Judgment  reversed. 


SUPREME  COURT.    Monroe  General  Term,  March  1853.    Selden, 
Johnson  and  T.  R.  Strong,  Justices. 

THE  PEOPLE  vs.  MICHAEL  McGiNNis. 

An  action  for  a  divorce  for  adultery  was  under  the  Code  of  1851,  referrible. 

It  is  not  necessary  to  a  valid  reference  of  an  action,  that  the  parties,  or  their 
attorneys  subscribe  a  writing  consenting  to  the  reference;  it  is  sufficient,  if 
an  order  of  reference  is  entered  with  their  assent  in  open  court;  that  is  a 
"  written  consent." 

A.  written  consent,  may  be  waived  by  appearing  before  the  referee  and  partici- 
pating in  the  proceedings  on  the  trial. 

A.n  order  of  the  court,  on  motion  of  the  defendant's  attorney,  that  the  plaintiff 
pay  a  sum  of  money  for  costs  and  alimony,  "on  condition  that  the  defend- 
ant's attorney  stipulate  with  the  plaintiff's  attorney  to  refer  the  whole  issues 
in  the  action,"  &c.,  where  the  stipulation  is  given  and  the  parties  proceed 
to  trial  before  the  referee,  is  a  sufficient  reference  of  the  action. 

A  variance  between  an  indictment  for  perjury  on  a  trial  before  a  referee  and 
the  evidence,  in  regard  to  the  person  before  whom  the  referee  was  sworn,  is 
immaterial.  The  allegations  and  proof,  as  to  the  taking  of  an  oath  by  th* 
referee  are 'superfluous;  he  acquired  jurisdiction  by  the  order  of  reference 
duly  made. 

The  answer  of  a  witness  on  cross-examination,  to  an  inquiry,  the  subject  of 
which  is  purely  collateral  to  the  issue,  is  conclusive. 

Indictment  for  perjury,  tried  at  the  sessions  in  Monroe 
County,  in  January,  1852.  The  indictment  set  forth,  that  one 
James  Kane  commenced  an  action  against  Catharine  Kane,  his 
wife,  for  a  divorce  for  adultery;  that  she  put  in  an  answer 
to  the  complaint,  and  among  other  things  alleged  that  the 
plaintiff  had  committed  adultery  with  one  Ann  Golden,  which 


388 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  r.  McGinnis. 


allegation  was  denied  in  the  reply;  that  in  October,  1851,  the 
action  was  referred  to  Isaac  R.  Elwood,  Esq.,  to  hear  and 
decide  the  same;  that  afterwards,  and  before  he  proceeded  to 
take  any  testimony  in  the  action,  "  the  said  Isaac  R.  Elwood 
personally  appeared  before  Samuel  L.  Selden,  then  and  there 
one  of  the  justices  of  the  supreme  court  of  the  State  of  New 
York,  and  duly  empowered  and  authorized  to  administer  oaths 
in  that  behalf,  and  by  and  before  the  said  Addison  Gardiner,  so 
being  such  judge,  and  duly  empowered  to  administer  such  oath, 
was  sworn  and  took  his  corporal  oath  faithfully  and  fairly  to 
hear  and  examine  the  said  cause,"  &c.;  that  the  referee  pro- 
ceeded to  the  hearing  and  trial  of  the  issues,  and  that  upon  the 
trial,  the  defendant  was  sworn  and  examined  as  a  witness,  and 
committed  the  offence  of  perjury,  in  testifying  to  the  adultery 
of  the  plaintiff  charged  in  the  answer. 

On  the  trial  of  the  indictment,  the  district  attorney  proved, 
that  a  motion  was  made  in  the  action  in  the  supreme  court,  on 
the  behalf  of  the  defendant,  for  costs  and  alimony,  that  the 
order  was  thereupon  made  by  the  court  hereinafter  set  forth,  and 
that  the  stipulation  hereinafter  set  forth  was  given  by  the 
defendant's  attorney  and  the  plaintiff's  attorney,  in  pursuance 
of  the  said  order.  The  district  attorney  then  offered  to  read  in 
evidence  a  stipulation  in  the  following  words: 

Supreme  Court.  —  James  Kane  agt.  Catharine  Kane.  —  I 
hereby  stipulate  that  this  case  be  referred  to  Isaac  R.  Elwood. 
Esq.,  C.  Jordan,  attorney,  for  defendant.  And  also  a  rule  of 
court,  made  and  entered  October  13,  1851,  as  follows: 

James  Kane  agt.  Catharine  Kane. —  C.  Jordan,  defendant's 
attorney.  Ordered,  on  motion  of  Mr.  Jordan,  attorney  for  the 
defendant  in  this  action,  that  the  plaintiff  pay  the  attorney  of 
the  defendant  thirty  dollars,  for  defence  of  this  action,  and  to 
the  defendant  one  dollar  and  fifty  cents  each  and  every  week, 
commencing  on  the  13th  day  of  October,  1851,  for  her  support 
and  maintenance,  until  a  final  decree  in  this  action,  or  further 
order  of  this  court,  on  condition  that  the  defendant's  attorney 


MONROE,  MARCH,   18-53. 


The  People  v.  McGinnis. 


stipulate  with  the  plaintiff's  attorney,  to  refer  the  whole  issues 
in  this  action  to  Isaac  R.  Elwood,  Esq.,  and  in  that  case  the 
plaintiff  is  to  pay  the  referee's  fees,  and  fees  of  the  defendant's 
witnesses  upon  the  reference,  and  that  the  plaintiff  be  not 
allowed  to  bring  this  action  to  trial  until  the  sum  of  $50  bo 
paid  to  defendant's  attorney."  The  counsel  for  the  defendant 
objected  to  proof  of  the  stipulation  and  rule,  but  the  court 
overruled  the  objection  and  the  exception  was  taken. 

Isaac  R.  Elwood,  was  sworn  as  a  witness  for  the  people 
and  the  district  attorney  offered  to  show  by  him  what  took 
place  on  said  reference.  The  counsel  for  the  defendant 
objected  to  the  testimony,  1st.  That  it  was  not  a  referrible 
cause.  2d.  That  the  cause  had  not  been  referred  by  the  writ- 
ten consent  of  the  parties.  The  court  overruled  the  objection, 
and  the  counsel  for  the  defendant  excepted.  The  witness  said 
that  he  acted  as  a  referee,  that  he  was  sworn  before  Jud^e 

7  O 

Selden,  that  Judge  Gardiner  was  not  at  home  The  counsel  for 
the  defendant  thereupon  objected  to  the  evidence,  and  moved 
that  the  defendant  be  discharged,  on  the  ground  of  variance 
between  the  indictment  and  the  proof.  The  court  overruled 
the  objection  and  received  the  evidence,  and  refused  to  dis- 
charge the  defendant,  to  which  decision  the  counsel  for  the 
defendant  then  and  there  excepted.  James  Kane  and  Ann 
Golden,  were  sworn  as  witnesses,  and  testified  that  Kane  never 
committed  adultery  with  her.  On  the  cross-examination  of  the 
last  witness,  many  questions  were  put  to  her  as  to  her  inti- 
macy with  Kane,  which  were  answered  in  the  negative.  She 
proceeded,  I  pay  Kane  three  shillings  per  week  for  rent  of  the 
room.  Kane  told  me  to  order  James  McDermott  out  of  my 
house,  and  if  he  did  not  go  to  send  for  him.  I  never  asked 
McDermott  to  come  to  my  house.  I  never  got  a  penny  from 
McDermott  for  any  purpose.  On  the  part  of  .the  defendant, 
there  was  testimony  of  one  witness,  that  corroborated  the  testi- 
mony of  defendant  before  the  referee,  and  also  testimony  on  the 
part  of  the  people  conflicting  therewith,  and  confirming  the 
testimony  of  Kane  and  Golden.  The  defendant  offered  to  show 
that  Ann  Golden  had  said,  that  McDermott  did  give  her  fifty 


390  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v .  McGinnis. 

cents.  This  testimony  was  objected  to  by  the  district  attorney, 
and  excluded  by  the  court,  on  the  ground  that  the  question  on 
that  subject  to  Ann  Golden  was  immaterial,  and  her  answer 
must  be  taken  as  true,  to  which  decision  the  counsel  for  the 
defendant  excepted.  The  defendant  was  found  guilty,  and  a 
bill  of  exceptions  was  sealed,  which  was  brought  into  this 
court  by  certiorari. 

W  S.  Bishop,  for  defendant. 

M.  S.  Newton  (Dist.  Att'y),  for  the  people. 

By  the  Court,  T.  R.  STRONG,  J.  —  I  am  satisfied  that  the 
action  for  a  divorce  was  referrible.  (Code  of  1851,  sections 
253,  254,  270.)  By  §253,  it  was  provided  that  "  whenever  in 
an  action  for  the  recovery  of  money  only,  or  of  specific  real 
or  personal  property,  there  shall  be  an  issue  of  fact,  it  must  be 
tried  by  a  jury,  unless  a  jury  trial  be  waived,  as  provided  in 
section  266,  or  a  reference  be  ordered,  as  provided  in  sections 
270  and  271."  Section  254  declares  that,  "  every  other  issue 
is  triable  by  the  court,  which,  however,  may  order  the  whole 
issue,  or  any  specific  questions  of  fact  involved  therein,  to  be 
tried  by  a  jury;  or  may  refer  it  as  provided  in  sections  270  and 
271."  By  §  270,  "  all  or  any  of  the  issues  in  the  action,  whe- 
ther of  fact  or  of  law  or  both,  may  be  referred,  upon  the  written 
consent  of  the  parties."  The  action  was  clearly  embraced 
within  the  last  two  sections. 

It  was  not  necessary  to  a  valid  reference  of  the  action,  that 
the  plaintiff,  or  his  attorney,  should  subscribe  the  stipulation 
given  by  the  attorney  of  the  defendant  in  the  action,  or  any 
writing  consenting  to  a  reference;  it  was  sufficient  if  the  plaint- 
iff's attorney  'assented  in  open  court  to  the  order  of  reference- 
If  the  order  was  entered  with  his  assent,  it  was  a  written  con- 
sent of  his  to  the  reference.  It  is  not  expressly  stated  in  the 
bill  of  exceptions,  that  the  plaintiff's  attorney  was  present  and 
assented  to  the  order  when  made,  but  it  is  stated  that  the  stipu- 
lation of  the  defendant's  attorney  was  given  to  him,  from 


MONROE,  MARCH.   1852.  39  j 

The  People  v.  McGinnis. 

which  and  the  terms  of  the  order,  it  is  apparent  that  the  refer- 
ence was  asked  for  by  him.  A  written  consent  might  also  be 
waived,  by  appearing  before  the  referee,  and  participating  in 
the  proceedings  on  the  trial.  It  is  not  stated  in  the  bill,  in 
terms,  that  the  plaintiff's  attorney  did  appear  and  take  part  in 
the  trial,  but  it  is  fairly  to  be  inferred  from  the  statements 
therein  in  respect  to  the  trial,  and  the  fact  that  he  testified  in 
the  present  case  what  was  sworn  to  by  the  defendant  on  the 
trial  before  the  referee. 

The  order  of  reference  is  informal.  It  does  not  expressly 
refer,  or  direct  a  reference  of  the  action,  but  I  think  it  suffi- 
ciently shows  the  assent  of  the  court  to  a  reference  to  the 
referee  named  therein,  and  that  it  was  intended  thereby  to 
refer  the  action,  provided  the  defendant's  attorney  should  give 
such  a  stipulation  as  was  given  by  him. 

In  regard  to  the  objection  of  variance  between  the  indict- 
ment and  the  evidence,  in  respect  to  the  person  before  whom 
the  referee  was  sworn,  it  is  a  sufficient  answer  to  it,  that  it 
was  not  necessary  to  allege  or  prove  anything  on  that  subject. 
(Howard  v.  Sexton,  4  Comstock  R.  157.)  Assuming  that  the 
provision  of  the  revised  statutes,  requiring  a  referee  to  be 
sworn  before  proceeding  to  hear  any  testimony  (2  R.  S.  384, 
§  44),  was  applicable  to  the  case,  as  it  probably  was,  the  oath 
was  not  necessary  to  confer  jurisdiction  to  try  the  action.  The 
referee  acquired  jurisdiction  by  the  order  of  reference,  duly 
made;  the  omission  of  the  oath  would  have  been  an  irregu- 
larity merely,  and  the  subject  only  of  a  motion.  Regarding  the 
allegations  and  proof,  in  regard  to  the  taking  of  the  oath  by 
the  referee,  as  superfluous,  no  prejudice  could  result  to  the  de- 
fendant from  the  variance,  and  it  must  be  overlooked.  (2  R. 
S.  728,  §52;  The  People  v.  Treadway,  3  Barb.  S.  C.  R.  470, 
arid  cases  cited.) 

The  court  properly  excluded  the  proof  offered  on  the  part  of 
the  defendant,  to  show  that  Ann  Golden  had  said  that  McDer- 
mott  did  give  the  fifty  cents.  It  does  not  appear  by  the  bill  of 
exceptions  that  she  had  testified  that  she  had  not  said  so,  or 
that  any  question  was  put  to  her  as  to  whether  she  had  so 


392  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Derby. 

stated,  but  if  the  inquiry  had  been  made  of  her  and  she  had 
testified  that  she  had  not  made  such  a  statement  to  McDermott, 
evidence  to  contradict  her  in  that  respect  would  not  have  been 
admissible.  The  subject  of  the  inquiry  would  have  been  purely 
collateral  and  the  answer  of  the  witness  would  have  been 
conclusive.  (Howard  v.  The  City  Fire  Ins.  Co.  4  Denio  R. 
502;  Harris  v.  Wilson,  7  Wend.  R.  57.) 

These  views  dispose  of  all  the  exceptions  which  were  relied 
on  upon  the  argument;  the  other  exceptions  taken  at  the  trial 
were  abandoned,  and  properly  so,  as  it  is  manifest  that  neithei 
of  them  is  tenable. 

New  trial  denied. 


COLUMBIA  CIRCUIT.     April,  1853.     Before  Parker,  Justice. 
THE  PEOPLE  vs.  EDWARD  M.  DERBY. 

A.  recognizance,  conditioned  for  the  appearance  of  M  at  the  next  court  ol 
sessions,  to  be  held  at  the  court  house  in  the  city  of  H,  to  be  tried  by  a  jury 
on  two  indictments  for  forgery,  is  to  be  construed  as  requiring  the  appearance 
of  M  at  the  next  court  of  sessions  to  be  held  in  the  city  of  H,  and  not  at 
the  next  court  of  sessions  to  be  there  held  at  which  a  jury  shall  be  summoned. 

(Vnd  where  such  a  recognizance  was  taken  in  January  1851,  and,  at  a  court  of 
sessions,  held  in  June  following,  M  was  defaulted  and  his  recognizance  de- 
clared forfeited  and  ordered  to  be  prosecuted,  and  in  an  action  on  the  recogni- 
zance, it  appeared  that  a  regular  term  of  the  court  of  sessions  had  been  held 
at  that  place  in  March  of  the  same  year,  though  no  jury  had  been  summoned 
to  attend  at  such  March  term,  it  was  held,  that  no  breach  of  the  condition 
of  the  recognizance  had  been  shown,  and  judgment  was  given  for  the  defend- 
ant. 

This  was  an  action  upon  a  recognizance,  tried  before  PARKER, 
Justice,  at  the  Columbia  Circuit,  in  April,  1853. 
The  complaint  was  as  follows: 

Supreme  Court,  Columbia  County.  —  The  People  of  the  State 
of  JVeto  Yor/fc  agt.  Edvnrd  M.  Derby.  —  The  plaintiffs  com- 
plain of  the  defendant  and  show  to  this  court,  that  on  the  tenth 


COLUMBIA,  APRIL,  1853.  393 

The  People  v.  Derby. 

day  of  January,  A.  D.  1851,  at  the  city  of  Hudson,  in  the 
county  aforesaid,  personally  came  before  a  court  of  Oyer  and 
Terminer  then  being  held  in  and  for  the  county  of  Columbia, 
one  Michael  P.  Mandigo  and  the  said  defendant,  and  acknow- 
ledged themselves  indebted  to  the  people  of  the  State  of  New 
York,  the  said  Mandigo  as  principal  in  the  sum  of  one  thou- 
sand dollars,  and  the  said  defendant  as  surety  in  the  sura  of 
one  thousand  dollars,  by  a  recognizance  in  writing  signed  by 
them,  with  a  condition  therein  contained,  that  if  the  said 
Michael  P.  Mandigo  should  be  and  appear  at  the  then  next 
Court  of  Sessions,  to  be  holden  at  the  Court  House,  in  the  City 
of  Hudson,  to  be  tried  by  a  jury,  on  two  indictments  for 
forgery  in  the  second  and  third  degrees,  and  not  depart  the 
court  without  leave,  then  the  said  recognizance  to  be  void  or 
else  to  be  and  remain  in  full  force  and  effect,  as  by  the  said 
recognizance  and  the  said  condition,  now  remaining  in  the 
office  of  the  clerk  of  the  county  of  Columbia,  at  the  city  of 
Hudson  aforesaid,  reference  being  thereunto  had,  will  more 
fully  and  at  large  appear.  And  the  said  plaintiffs  aver,  that 
the  next  court  of  sessions  at  which  a  jury  was  summoned  and 
attended,  to  be  holden  next  after  the  signing  of  said  recogniz- 
ance, in  and  for  the  county  of  Columbia,  was  held  at  the  Couit 
House  in  the  city  of  Hudson,  in  and  for  the  county  of  Colum- 
bia, on  the  third  day  of  June,  in  the  year  of  our  Lord,  one 
thousand  eight  hundred  and  fifty  one,  before  John  T.  Hoge- 
boom,  county  judge  of  the  said  county  of  Columbia,  and  Wes- 
ley R.  Gallup  and  Jacob  Barringer,  two  of  the  justices  of  the 
peace  in  said  county,  duly  designated  according  to  the  statute 
in  such  case  made  and  provided  to  hold  courts  of  sessions  in 
said  county,  and  that  the  said  last  mentioned  court  commenced 
its  session  on  the  said  last  mentioned  day,  and  that,  at  the  said 
last  mentioned  court,  held  on  the  day  and  at  the  place  last 
mentioned,  the  said  indictments  were  then  pending  undeter- 
mined therein,  and  the  said  recognizance  in  full  force  and 
effect.  That  the  said  Michael  P.  Mandigo  being  then  and 
there  called  in  open  court,  during  the  sitting  of  the  said  court, 
did  not  appear  in  said  court  and  abide  the  order  of  the  said 
VOL.  I.  50 


394  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Derby. 

court  in  the  premises,  but  therein  wholly  failed  and  made 
default:  whereupon  an  order  was  entered  by  the  said  court 
forfeiting  the  said  recognizance  and  directing  the  same  to  be 
prosecuted  according  to  law,  as  by  the  record  and  proceedings 
of  the  said  court,  reference  being  thereto  had,  will  more 
fully  and  at  large  appear.  Whereby  the  said  recognizance 
became  forfeited,  and  an  action  hath  accrued  to  the  said  plaint- 
iffs to  demand  and  have  of  and  from  the  said  defendant,  the 
said  sum  of  one  thousand  dollars  above  mentioned,  wherefore 
the  plaintiffs  demand  judgment  in  this  action  for  one  thousand 
dollars,  besides  costs  of  this  action. 

J.  C.  NEWKIRK,  District 
Attorney  of  Columbia  County,  plaintiff's  attorney. 

The  defendant,  in  his  answer  put  in  by  M.  SANFORD,  IK 
attorney,  denied  each  and  every  allegation  contained  in  the 
complaint,  and  alleged  that  the  said  Michael  P.  Mandigo 
appeared  at  the  said  court  of  sessions,  according  to  the  condi- 
tion of  the  said  recognizance,  and  that  the  said  condition  was 
complied  with  in  all  respects. 

On  the  trial,  the  counsel  for  the  plaintiffs  produced  in  evi- 
dence and  read  from  the  minutes  of  the  court  of  Oyer  and  Ter- 
ra iner,  held  in  and  for  the  county  of  Columbia,  on  the  tenth  day 
January  1851,  a  recognizance  in  the  words  and  figures  follow- 
ing: 

"  The  People  v.  Michael  P.  Mandigo.  —  January  10,  1851. 
Michael  P.  Mandigo  as  principal  and  -Edward  M.  Derby  as 
surety,  acknowledge  themselves  indebted  to  the  people  of  the 
state  of  New  York:  the  said  Mandigo  in  the  sum  of  one  thou- 
sand dollars,  and  the  said  Edward  M.  Derby  as  surety,  in  the 
like  sum  of  one  thousand  dollars,  to  be  levied  of  their  and  each 
of  their  respective  goods  and  chattels,  lands  and  tenements,  to 
the  use  of  the  said  people  if  default  shall  be  made  in  the 
condition  following:  The  condition  of  this  recognizance  is 
such,  that  if  the  said  Michael  P.  Mandigo  shall  be  and  appear  at 
the  next  court  of  sessions  to  be  held  at  the  court  house  in  the 


COLUMBIA,  APRIL,  1853.  395 


The  People  v.  Derby. 


city  of  Hudson,  to  be  tried  by  a  jury  on  two  indictments  for 
forgery  in  the  second  and  third  degrees,  and  not  depart  the 
court  without  leave,  then  this  recognizance  to  be  void  or  else 
to  be  and  remain  in  full  force  and  effect. 

Michael  P.  Mandigo. 

Edward  M.  Derby. 

The  counsel  for  the  plaintiffs  further  proved,  that  on  the  said 
10th  day  of  January,  1851,  orders  were  made  by  the  said  court 
of  Oyer  and  Terminer  and  entered  in  the  minutes  sending  each 
of  the  said  indictments  against  Mandigo,  for  forgery,  "  to  the 
next  court  of  sessions  for  trial." 

The  plaintiff's  counsel  then  proved  by  the  minutes  of  the 
court  of  sessions  of  said  county,  held  in  June,  1851,  that  an 
order  was  made  and  entered  by  that  court  as  follows: 

"  The  People  v.  Michael  Mandigo.  —  June  3,  1851.  Default 
entered.  Recognizances  forfeited  and  ordered  prosecuted.  Mi- 
chael P.  Mandigo,  principal;  Edward  M.  Derby,  surety." 

John  R.  Currie  was  then  called  as  a  witness  for  the  plaint- 
iffs, and  testified  that  he  was  clerk  of  Columbia  county  in  1851, 
and  till  January,  1853;  that  he  acted  as  clerk  of  the  Oyer  and 
Terminer  in  January,  1851;  that  the  recognizance  in  question 
was  taken  by  him  in  open  court,  and  signed  by  Mandigo  and 
Derby  in  his  presence. 

On  his  cross-examination,  he  testified  that  there  was  a  court 
of  sessions  held  in  Columbia  county  in  March,  1851;  that  no 
jury  was  drawn  for  attendance  at  such  term;  that  the  recog- 
nizance in  question  was  not  forfeited  at  said  March  term;  that 
the  June  term,  1851,  was  the  first  term  of  the  sessions  at  which 
a  jury  was  summoned  or  attended;  and  that  it  appeared  from 
the  minutes  of  the  court  of  sessions,  that,  at  the  said  March 
term,  there  was  no  rule  or  order  made  or  entered  sending  the 
said  indictments  to  the  June  term,  or  continuing  the  said  recog- 
nizance to  the  said  June  term. 

M.  Sanford,  for  the  defendant. 

J.  C.  Newkirk  (Dist.  Att'y),  for  the  people. 


396 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Hendrickson. 


PARKER,  J.,  after  hearing  counsel,  expressed  the  opinion, 
that  the  proper  construction  of  the  recognizance  was,  that 
Mandigo  should  appear  at  the  next  court  of  sessions  to  be  held 
in  the  city  of  Hudson,  and  not  at  the  next  court  of  sessions  at 
which  a  jury  should  be  summoned;  that  Mandigo  was  bound, 
therefore,  by  the  recognizance,  to  appear  at  the  March  term, 
and  not  at  the  June  term;  that  though  the  indictments  had 
been  sent  to  the  March  term  for  trial,  no  proceedings  upon 
them  had  been  had  at  that  term,  nor  had  any  step  been  taken 
to  continue  the  recognizance  till  the  June  term,  and  that  there- 
fore the  default  taken  at  the  June  term  was  irregular,  and  no 
evidence  of  a  breach  of  the  condition  of  the  recognizance. 
Whereupon  the  jury,  under  the  direction  of  the  court,  rendered 
a  verdict  in  favor  of  the  defendant. 

Judgment  for  defendant. 


SUPREME  COURT.    At  Chambers,  August,  1853.    Before  Wright , 

Justice. 

THE  PEOPLE  vs.  JOHN  HENDRICKSON,  JR. 

In  determining  whether  a  writ  of  error  should  be  allowed  and  a  stay  of  proceed- 
ings granted,  to  enable  a  prisoner  to  review,  before  the  supreme  court,  an 
exception  taken  at  the  Oyer  and  Terminer  on  a  trial  for  murder,  it  is  not 
necessary  that  the  justice  to  whom  the  application  is  made,  should  arrive  at 
the  positive  conclusion  that  the  cou/t  erred  on  the  law;  it  is  enough  that  the 
exception  is  not  deemed  frivolous,  and  that  it  involves  a  gravely  important 
question,  in  regard  to  which  there  is  a  conflict  of  authority,  and  which  re- 
mains unsettled  by  the  courts  of  thi*  state. 

Where  a  coroner's  inquest  was  held  on  the  day  following  that  of  the  alleged 
murder,  at  which  the  prisoner  was  called  by  the  coroner  as  a  witness,  and 
was  sworn  and  examined  by  him,  under  oath,  before  the  coroner's  jury, 
having  been  subpoenaed  to  attend  for  that  purpose,  there  being  some  circum- 
stances tending  to  show  that  the  prisoner  was  then  suspected  of  the  murder 
though  no  charge  had  then  been  made  against  him,  and  on  the  subsequent 
trial  of  the  prisoner  at  the  Oyer  and  Terminer,  the  court  permitted  the 
counsel  for  the  people  to  give  in  evidence  the  statements  made  by  the  prisoner 
on  such  examination,  it  was  held  there  was  sufficient  doubt  of  the  correct- 
ness of  the  decision  to  warrant  the  allowance  of  a  writ  of  error  with  a  star 
of  proceedings. 


ALBANY,  AUGUST,  1853.  397 

The  People  r.  Hendrickson. 

In  July,  1853,  at  the  Albany  Oyer  and  Terminer,  Justice 
MARVIN  presiding,  the  prisoner  was  convicted  on  an  indictment 
charging  him  with  the  murder  of  his  wife,  and  sentenced  to  be 
executed  on  the  26th  day  of  August,  1853.  A  number  of  ex- 
ceptions were  taken  by  the  counsel  for  the  prisoner  during  the 
progress  of  the  trial.  After  a  bill  of  exceptions  had  been  pre- 
pared and  settled,  the  counsel  for  the  prisoner,  upon  notice  to 
the  attorney  general,  applied  for  the  allowance  of  a  writ  of 
error  and  stay  of  proceedings  on  the  judgment. 

Wheaton  fy  Hadley,  for  prisoner. 

Colvin  (Dist.  Att'y),  and 

Chatfield  (Attorney  General),  for  the  people. 

WRIGHT,  J. — Upon  this  application,  the  counsel  for  the  pri- 
soner have  directed  me  to  seven  distinct  exceptions  taken  during 
the  progress  of  the  trial,  each  one  of  which  they  deem  of  suf- 
ficient importance  to  merit  an  examination  and  review  by  the 
supreme  court.  On  the  contrary,  the  attorney  general  contends 
that  there  is  but  one  of  the  exceptions  at  all  worthy  of  con- 
sideration. The  exception  which  relates  to  the  admission  of 
proof  of  the  statements  made  by  the  prisoner  under  oath  at  the 
coroner's  inquest,  he  concedes,  at  least,  by  an  elaborate  argu- 
ment of  the  point,  is  not  to  be  regarded  as  frivolous.  In  de- 
termining whether  the  prisoner  shall  have  an  opportunity  for 
review  by  the  supreme  court  of  the  exceptions  taken,  I  am  not 
necessarily  called  upon  to  arrive  at  the  positive  conclusion  that 
the  court  erred  as  to  the  law.  It  is  enough  that  there  is  any 
one  exception  in  the  case  which  I  deem  not  to  be  frivolous; 
and  which  involves  a  gravely  important  question,  respecting 
which  there  may  be  even  a  conflict  of  authority,  but  which  re- 
mains unsettled  by  the  courts  of  this  state. 

On  the  trial,  the  prosecution  proved  that  an  inquest  was  held 
by  the  coroner  of  the  county  of  Albany,  on  Monday  evening, 
the  7th  March,  (the  death  having  occurred  on  the  evening  pre- 
vious,) on  the  body  of  the  deceased.  The  prisoner  was  called 


398 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Hendrickson. 


by  the  coroner  as  a 'witness,  and  was  sworn  by  him,  and  was 
examined  as  a  witness,  under  oath,  before  the  coroner's  jury. 
The  witness  who  proved  these  facts,  thinks  that  the  prisoner 
was  subpoenaed  by  the  coroner.  The  prosecution  proposed  to 
prove  the  statement  made  by  the  prisoner  before  the  coroner's 
jury  under  oath.  The  counsel  for  the  prisoner  objected  to  th^ 
witness'  stating  what  the  prisoner  swore  to  when  testifying  as  ; 
witness  before  the  coroner,  on  the  ground  that  what  he  swon 
to  upon  that  occasion,  was  not  a  voluntary  statement.  Th* 
objection  was  overruled  by  the  court,  and  the  evidence  admit 
ted,  the  prisoner  excepting.  The  counsel  for  the  prosecution 
then  put  to  the  witness  this  question:  "  What  account  did  thf 
prisoner  give,  when  examined  as  a  witness  before  the  coroner 
of  the  circumstances  at  ending  the  death  of  his  wife?"  The 
counsel  for  the  prisoner  objected  to  the  question,  on  the  grouno 
that  his  statements,  made  before  the  coroner,  were  not  volun- 
tary, while  testifying  as  such  witness.  The  objection  was 
overruled,  and  the  evidence  received,  and  the  prisoner  excepted. 
The  witness  then  proceeded  to  detail  the  statements  made  by 
the  prisoner.  From  the  evidence  of  the  witness,  it  appears 
that  after  the  prisoner  had  stated  the  circumstances  occurring 
on  the  evening  of  his  wife's  death,  he  was  interrogated  as  to 
his  having  been  in  the  city  of  Albany  a  short  time  previously, 
what  he  went  to  Albany  for,  and  whether  he  had  been  in 
Springsteed's  drug  store,  or  any  other  drug  store,  whilst  at 
Albany. 

Neither  my  own  necessarily  limited  examination,  or  the  re- 
searches of  counsel,  have  enabled  me  to  find  a  reported  case  in 
the  courts  of  this  country,  on  the  question  whether,  on  a  trial 
for  murder,  the  deposition  or  statement  on  oath  of  the  prisoner, 
taken  before  the  coroner  on  the  inquest  held  on  the  body  of  the 
deceased,  is,  or  is  not,  receivable  in  evidence,  or  upon  what 
precise  principle,  or  under  what  circumstances,  a  prior  depo- 
sition, or  statement  on  oath,  of  the  prisoner  should  be  rejected 
on  his  trial  for  a  criminal  offence.  The  case  of  The  State  v. 
Broughton  (7  Iredell  R.  96),  is  the  only  reported  American 
case  that  I  have  been  able  to  discover,  bearing  upon  the  ques- 


ALBANY,  AUGUST,  1833.  399 

The  People  v.  Hendrickson. 

tion,  under  what  circumstances,  and  upon  what  principle,  the 
prior  statement,  or  deposition  of  the  prisoner,  made  on  oath 
before  a  public  officer  or  body,  shall  or  shall  not  be  receivable. 
In  England,  however,  there  are  a  number  of  reported  cases.  It 
must  be  admitted  that  the  decisions  of  the  British  judges  have 
not  been  always  uniform;  but  the  weight  of  authority  seems  to 
sustain  the  position,  that  when  the  circumstances  do  not  show 
the  prior  statement  or  deposition  of  the  prisoner  made  before  a 
magistrate  or  coroner  to  have  been  entirely  voluntary,  it  ought 
to  be  rejected. 

In  a  case  tried  at  Worcester,  reported  in  a  note  to  the  case 
of  Rex  v.  Haworth  ( 19  Eng.  Com.  Law  R.  370),  where  it  ap- 
peared that  a  coroner's  inquest  had  been  held  on  the  body  of 
A,  and  it  not  being  suspected  that  B  was  at  all  concerned  in 
the  murder  of  A,  the  coroner  had  examined  B  upon  oath  as  a 
witness;  Park, «/.,  would  not  allow  the  deposition  of  B,  so  taken 
on  oath  on  the  coroner's  inquest,  to  be  read  in  evidence  on  the 
trial  of  an  indictment  afterwards  found  against  B  for  the  same 
murder.  In  Reg.  v.  Wheeley  (8  Carrington  fy  Payne  R.  250 ), 
the  prisoner  was  charged  with  the  murder  of  Mary  his  wife,  by 
administering  poison  to  her.  It  was  opened  by  Hume  for  the 
prosecution,  that  the  deceased  had  died  from  poison,  but  that 
there  was  no  evidence  to  affect  the  prisoner,  except  a  statement 
made  by  him  before  the  coroner  at  the  inquest.  This  statement 
purported  on  the  face  of  it  to  have  been  taken  on  oath,  but  the 
coroner  would  state,  if  parol  evidence  was  admissible,  that  in 
fact  no  oath  was  administered  to  the  prisoner;  Jllderson,  B., 
said:  "  As  the  statement  purports  to  be  a  statement  on  oath,  I 
cannot  receive  it  as  evidence  against  the  prisoner;  and  I  think, 
as  it  so  purports,  I  can  not  allow  parol  evidence  to  be  given  to 
show  that  the  statement  was  not  made  upon  oath."'  In  Regina 
v.  Owen  et  a/.,  at  the  Stafford  assizes,  in  1840  (9  Car.  8f  Payne 
R.  238),  Owen,  and  two  others,  were  charged  with  the  murder 
of  Christina  Collins,  by  drowning  her.  The  prosecution  pro- 
posed to  give  in  evidence  the  depositions  of  the  prisoners  taken 
on  oath,  on  the  coroner's  inquest  held  on  the  body  of  the 
deceased;  Gurney,  B.,  rejected  the  evidence.  At  a  former 


400  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Hendrickson. 

assizes  held  before  Mr.  Justice  Williams,  the  prisoners  had 
been  tried  for  ravishing  Mrs.  Collins.  The  prosecution  pro- 
posed to  read  in  evidence  the  statements  made  by  the  prisoners 
on  oath  before  the  coroner's  inquest;  Williams,  J.,  decided  to 
receive  the  evidence,  and  reserve  the  question  for  the  opinion 
of  the  fifteen  judges.  As  the  prisoners  were  acquitted,  the 
point  was  not  brought  before  the  judges.  This  decision  of 
Justice  Williams  was  cited  by  the  prosecution  on  the  trial 
before  Baron  Gurney  for  murder;  but  the  statements  were,  not- 
withstanding, rejected,  the  Baron  saying,  that  he  was  not  aware 
of  any  instance  in  which  an  examination  on  oath  before  a  coro- 
ner or  magistrate,  had  been  admitted  as  evidence  against  the 
person  making  it.  In  Regina  v.  Robert  and  Jinn  Sandys  (41 
Eng.  Com.  Law  R.  191),  at  the  Welch  summer  circuit  in  1841, 
the  prisoners  were  put  upon  their  trial  for  the  murder  by  poison 
of  their  child,  Elizabeth  Sandys.  It  appears  that  she  died  on 
the  25th  September,  1840,  and  was  buried,  and  that  no  sus- 
picion arose  that  her  death  had  been  occasioned  by  poison  until 
the  death  of  Mary  Ann  Sandys,  another  child,  who  died  on  the 
13th  October,  1840.  The  parents  having  insinuated  that  the 
child,  Mary  Ann  Sandys,  had  been  poisoned  by  a  woman  na- 
med Rik-y,  she  was  taken  into  custody  for  examination  before 
the  coroner  as  to  the  cause  of  death.  The  mother,  Ann  Sandys, 
was  examined  on  oath  as  a  witness.  In  the  course  of  examin- 
ation, questions  were  put  to  her  relative  to  the  death  of 
Elizabeth  Sandys.  In  consequence  of  her  answers,  and  other 
circumstances,  the  body  of  Elizabeth  Sandys  was  disinterred 
and  examined,  when  it  appeared  that  she  had  died  of  poison. 
The  parents  wrere  thereupon  taken  into  custody  on  the  charge 
of  poisoning  both  children,  and  were  brought  before  the  coroner 
in  custody  separately.  When  Ann  Sandys  was  brought  in,  she 
was  told  that  she  was  charged  with  having  poisoned  her  two 
children,  and  that  that  was  the  time  when  she  might  make  any 
statement  that  she  liked  to  the  jury,  and  that  what  she  said 
would  be  taken  down  in  writing.  Her  former  deposition  made 
by  her  as  a  witness  was  then  read  over  to  her,  and  she  said 
that  she  had  a  further  statement  to  make,  which  she  made,  and 


ALBANY,  AUGUST,  1853. 


The  People  v.  Hendrickson. 


what  she  then  said  was  written  down,  and  afterwards  read  over 
to  her.  She  was  asked  to  sign  it,  but  she  refused.  The  coro- 
ner signed  it,  and  it  was  produced  at  the  trial,  and  identified  by 
the  person  who  wrote  it,  and  was  offered  in  evidence  against 
Ann  Sandys,  together  with  her  original  deposition.  The  coun- 
sel for  the  prisoner  objected,  that  as  the  greater  part  of  the 
statement  had  been  made  by  the  prisoner  when  under  examin- 
ation before  the  coroner  upon  oath,  it  could  not  be  read  in 
evidence  against  her.  Erskine,  J.,  said  he  would  receive  the 
evidence,  and  reserve  the  point  for  the  consideration  of  the 
fifteen  judges.  Ann  Sandys  was  acquitted.  Afterwards  the 
case  was  considered  by  the  judges,  but  as  the  prisoner,  Ann 
Sandys,  could  not  be  again  put  upon  her  trial,  their  lordships 
thought  it  unnecessary  to  consider  whether  her  examination 
had  been  properly  received  or  not 

These  are  the  only  cases  to  which  I  have  been  referred, 
where  the  question  has  been  distinctly  raised  as  to  the  admis- 
sibility,  on  the  trial  of  a  person  for  murder,  of  the  deposition  or 
statement  made  under  oath  by  such  person  on  a  coroner's  in- 
quest, held  on  the  body  of  the  deceased.  The  case  reported  in 
the  note  to  the  case  of  Rex  \.  Howarth;  also,  the  case  of  Reg. 
v.  Wheeley,  and  that  of  Regina  v.  Owen  et  a/.,  distinctly  hold 
the  inadmissibility  of  such  statement  or  deposition.  In  Regina 
v.  Owen,  Baron  Gurney  rejected  them  when  the  prisoners  were 
on  trial  for  murder;  while  Mr.  Justice  Williams  received  them 
on  the  trial  for  rape,  reserving  the  point  for  the  judges. 

In  Rex  v.  Lewis,  (25  Eng.  Com.  Law  R.  333,)  the  prisoner 
was  indicted  for  administering  poison  to  Elizabeth  Davis.  On 
the  day  on  which  the  prisoner  was  committed,  she  and  several 
others  were  summoned  before  the  Rev.  Charles  Bird,  and  ex- 
amined on  oath  touching  the  poisoning,  there  being  no  specific 
charge  against  any  person;  but  on  the  conclusion  of  the  exa- 
mination, the  prisoner  was  committed  for  trial  on  the  charge. 
The  prisoner  was  examined  on  oath,  and  her  examination  taken 
down.  On  the  trial,  the  prosecution  proposed  to  put  the  exa- 
mination in  evidence.  Baron  Gurney  would  not  receive  it, 
saying,  "  That  this  being  a  deposition  made  by  the  prisoner  at 
VOL.  I.  51 


402 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Hendrickson. 


the  same  time  as  all  the  other  depositions  upon  which  she  was 
Committed,  and  on  the  very  same  day  on  which  she  was  com- 
mitted, I  think  it  is  not  receivable.  I  do  not  think  this  exa- 
mination was  perfectly  voluntary.  In  Rex  v.  Tubby,  (5  Car.  Sf 
Payne,  539,)  on  an  indictment  for  burglary,  it  was  proposed  by 
the  prosecution  to  read  a  statement  made  upon  oath  by  the  pri- 
soner at  the  time  when  he  was  not  under  any  suspicion.  Baron 
Vaughan  decided  to  receive  it,  but  as  it  contained  nothing 
material,  the  prosecution  did  not  offer  it  in  evidence.  This 
case  was  cited  to  Baron  Gurney  in  that  of  the  King  v.  Lewis, 
but  he  thought  the  cases  were  quite  distinguishable.  In  the 
case  of  Rex  v.  Merceron,  (2  Starkte's  JV*.  P.  Cases,  323,)  the 
defendant  was  indicted  for  corruption  in  office,  in  having  cor- 
ruptly granted  licenses  to  public  houses.  In  the  course  of  the 
evidence  for  the  prosecution,  it  was  proposed  to  prove  what  the 
defendant  said  on  his  examination  before  the  committee  of  the 
House  of  Commons.  The  defendant  had  been  compelled  to  ap- 
pear before  the  committee  and  was  examined  by  them.  It  was 
objected  that  the  statement  was  not  voluntary,  as  he  would 
subject  himself  to  punishment  for  refusing  to  answer.  Abbott, 
J.,  held  the  statement  admissible.  This  case  was  afterwards 
questioned  in  Rex  v.  Gilham.  (Moody  C.  Cases,  203.)  In 
Wheater's  Case,  (2  Lewis's  C.  C.  157,)  tried  at  the  York  spring 
assizes  in  1838,  the  prisoner  was  indicted  for  perjury,  and  it 
was  proposed  to  give  in  evidence  against  him  his  deposition 
taken  on  oath  before  commissioners  of  bankrupts.  It  was 
objected  that  the  deposition  was  inadmissible  as  not  being  a 
voluntary  statement;  but  to  this  it  was  answered  that  when 
before  the  commissioners  he  was  not  accused  of  any  crime. 
Mr.  Justice  Coleridge  received  the  evidence,  reserving  the 
point,  and  the  judges  were  afterwards  of  the  opinion  that  the 
evidence  was  admissible.  In  The  State  v.  Broughton,  (7  Ire- 
deWs  R.  96,)  a  person  sought  the  opportunity  and  voluntarily 
went  before  a  grand  jury,  and  was  examined  in  relation  to  a 
certain  offence.  He  was  afterwards  indicted  for  that  particular 
offence.  It  was  held  on  his  trial  that  his  testimony  before  the 
grand  jury  might  be  given  in  evidence  against  him.  Roscoe 


ALBANY,  AUGUST,  1853.  403 

The  People  v.  Hendrickson. 

says,  "  A  question  sometimes  arises  whether  a  statement  which 
•has  been  made  by  a  party  upon  his  examination  as  a  witness 
can  be  given  in  evidence  against  him  if  he  should,  himself,  be 
put  upon  his  trial  for  the  same  offence.  The  general  rule  is, 
that  admissions  made  under  compulsory  process  are  evidence 
against  the  party."  (Roscoe  Crim.  Ev.  45.)  So  also  it  is  said 
by  Starkie,  "  that  when  a  witness  answers  questions  on  his 
examination  on  a  trial  tending  to  criminate  himself,  and  to 
which  he  might  have  demurred,  his  answers  may  be  used  for 
all  purposes."  (2  Starkie's  Ev.  3d  ed.  28.)  Greenleaf  says, 
"  that  when  the  prisoner,  having  been  examined  as  a  witness  on 
a  prosecution  against  another  person,  answered  questions  to 
which  he  might  have  demurred  as  tending  to  criminate  himself, 
and  which,  therefore,  he  was  not  bound  to  answer,  his  answers 
are  deemed  voluntary,  and  as  such  may  be  subsequently  used 
against  himself  for  ail  purposes,  although,  when  his  answers 
are  compulsory,  and  under  the  peril  of  punishment  for  contempt, 
they  are  not  received."  And  he  cites  Starkie,  Roscoe,  Wheater's 
Case,  and  Rex  v.  Tubby.  (Greenleaf  Ev.  §225.)  So  also 
he  says,  in  commenting  upon  the  case  of  Rex  v.  Lewis,  "  This 
case  may  seem  at  the  first  view  to  be  at  variance  with  what  has 
been  just  stated  on  the  general  principles  in  regard  to  testimony 
given  in  another  case;  but  the  difference  lies  in  the  different 
natures  of  the  two  proceedings.  In  the  former  case  the  mind 
of  the  witness  is  not  disturbed  by  a  criminal  charge;  and,  more- 
over, he  is  generally  aided  and  protected  by  the  presence  of  the 
counsel  in  the  cause;  but  in  tlve  latter  case,  being  a  prisoner, 
subjected  to  an  inquisitorial  examination,  and  himself  at  least 
in  danger  of  an  accusation,  his  mind  is  brought  under  the  full 
influence  of  those  disturbing  forces  against  which  it  is  the 
policy  of  the  law  to  protect  him."  (§226.) 

The  counsel  for  the  prisoner  contends  that  the  principles  to 
be  deduced  from  these  and  other  authorities,  are,  that  to  render 
the  statement  or  deposition  of  the  prisoner  admissible  against 
him,  it  must  have  been  made  under  circumstances  sho\\  ing  it 
to  have  been  perfectly  voluntary;  that  a  statement  made  on  oath 
before  a  coroner  on  an  inquisitorial  examination  as  to  the  cause 


404  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Hendrickson. 

of  the  death  of  the  deceased,  when  the  prisoner  did  not  volun- 
teer to  make  it,  is  not  a  voluntary  statement,  but  is  made  under 
a  sort  of  restraint  or  duress,  and  when  he  himself  at  least  is  in 
danger  of  an  accusation;  that  when  such  statement  is  not  made 
as  a  witness  in  a  prosecution  against  a  third  person,  but  is 
drawn  from  him  under  oath  in  an  investigation  by  a  magistrate 
or  coroner  as  to  the  cause  of  the  death  of  the  person  that  he  is 
afterwards  indicted  and  put  upon  trial  for  the  murder  of,  it  is 
not  voluntary;  and  hence,  under  those  circumstances,  and  whe- 
ther the  prisoner  was  at  the  time  he  made  the  statement  charged 
with  crime  or  under  suspicion  or  not,  such  statement  or  depo- 
sition, or  evidence,  is  not  to  be  received  against  him.     On  the 
contrary,  the  attorney  general  contends,  that  whether  the  state- 
ment be  made  before  a  coroner  or  other  officer  or  body  that  may 
issue  compulsory  process,   the  distinction   is,  that  if,  when  a 
person  makes  the  statement  sought  to  be  offered  in  evidence, 
he  is  not  charged  with  any  crime,  or  suspected,  the  statement 
is  receivable.     If  he  be  suspected,  or  in  custody,  then  it  is  to 
be  rejected.     The  cases  cited  would  seem  to  sustain,  in  a  de- 
gree, the  positions  of  both  counsel.     I  think  it  is  clear  that  the 
previous  statement  of  a  prisoner  ought  not    to   be  received 
against  him,  unless  it  has  been  voluntarily  made.    When  made 
in  a  civil  suit,  or  in  a  prosecution  against  a  third  person,  and 
the  witness's  mind  is  not  disturbed  by  a  criminal  charge,  or  he 
is  himself  in  no  danger  of  an  accusation,  his  testimony  or  state- 
ment is  deemed  to  be  voluntary,  and  is  to  be  received  against 
him.  When  charged  with  crime,  or  suspected,  any  examination 
under  oath  is  not  a  voluntary  examination,  and  for  that  reason 
is  to  be  rejected.     Indeed  so  far  have  the  English  courts  gone 
on  this  subject,  that  in  the  case  of  The  King  v.  Wifson,  ( 1  Holt, 
597,)  where  the  committing  magistrate  stated  that  the  prisoner 
was  not  sworn,  that  he  held  out  no  hope  or  inducement  to  him 
and  employed  no  threats,  but  that  he  examined  him  at  consi- 
derable extent,  in  the  same  manner  that  he  was  accustomed  tc 
examine  a  witness,  Baron  Richards  refused  to  suffer  the  exami- 
nation to  be  read,  holding  that  it  was  "  no  matter  whether  the 
prisoner  was  sworn  or  not.     An  examination  itselt  imposes  ao 


ALBAXV.   AUGUST,   i&oO.  495 


The  People  t>.  Hendrickson. 


obligation  to  speak  the  truth.  If  the  prisoner  will  confess,  let 
him  do  so  voluntarily.  Ask  him  what  he  has  to  say.  But  it  is 
irregular  in  a  magistrate  to  examine  in  the  same  manner  as  a 
witness  is  examined."  It  would  be  error,  of  course,  for  a  com- 
mitting magistrate  to  impose  an  oath,  or  even  to  examine  as  he 
would  a  witness,  a  person  charged  before  him  with  crime. 
Statements  or  confessions  made  under  such  circumstances  would 
not  be  voluntary.  Are  they  or  not  to  be  deemed  voluntary, 
when  made  under  oath,  on  an  inquisitorial  examination  bv  a 
coroner  as  to  the  cause  of  the  death  of  the  deceased,  no  specific 
charge  being  made  against  any  person?  This  is  the  important 
question  in  this  case,  and  as  I  have  intimated,  I  am  not  called 
on  upon  this  application  to  definitively  arrive  at  the  conclusion, 
that,  in  law,  statements  or  confessions  made  under  such  circum- 
stances are  not  voluntary  and  should  be  rejected.  It  is  enough 
that  there  is  doubt  as  to  the  law;  that  from  the  decided  cases, 
it  is  not  a  clear  proposition  that  the -presiding  judge,  on  the 
trial  of  the  prisoner,  was  right  in  admitting  evidence  of  state- 
ments made  on  oath  at  the  coroner's  inquest,  to  justify  me  in 
giving  the  prisoner  an  opportunity  to  present  the  question  1o 
the  supreme  court.  It  is  also  worthy  of  remark  that  the  evi- 
dence in  the  case,  and  the  examination  of  the  prisoner  at  the 
coroner's  inquest,  would  seem  to  show  that  at  the  time  of  such 
examination  he  was  a  suspected  man.  The  deceased  had  died 
suddenly.  But  a  few  hours  before  she  was  found  dead,  she  had 
retired  to  her  room  in  company  with  the  prisoner,  in  her  usual 
health.  Her  death  occurred  when  he  only  was  in  her  company. 
On  his  examination  he  was  interrogated  as  to  his  being  at 
Albany  prior  to  his  wife's  decease,  and  whether  he  had  been  in 
Springsteed's  or  any  other  drug  store  in  the  city. 

There  are  one  or  two  other  exceptions  growing  out  of  the 
admission  of  evidence  on  the  trial,  that  I  deem  not  unworthy 
of  further  consideration;  especially  that,  when  under  the  pre- 
text o,f  showing  the  state  of  feeling  existing  between  the.  pri- 
soner and  his  wife,  and  furnishing  evidence  from  which  the 
jury  might  infer  a  motive  for  the  prisoner's  committing  the 
crime  of  which  he  was  charged,  the  court  permitted  evidence 


406  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Hendrickson. 

of  charges  of  moral  delinquency  made  by  the  wife  against  the 
prisoner,  in  conversations  with  him,  without  the  prosecution 
proposing  to  show,  or  showing,  that  the  prisoner  resented  such 
charges,  or  that  they  produced  any  ill  will,  or  irritated,  or  re- 
vengeful feeling,  on  his  part. 

I  shall  allow  a  writ  of  error  in  this  case,  with  a  stay  of  pro- 
ceedings on  the  judgment.  One  or  two  of  the  questions  raised 
by  the  bill  of  exceptions  are  exceedingly  important;  and  whe 
ther  it  shall  be  hereafter  determined  that  the  court  of  Oyer  and 
Terminer  erred  or  not  upon  these  questions,  there  is  at  least, 
in  my  view,  probable  grounds  to  justify  me  in  giving  the  pri- 
soner an  opportunity  for  a  review  of  the  questions  by  the  Su- 
preme Court. 


SUPREME  COURT.     Albany  General  Term,  December,  1853. 
Watson,  Wright  and  Harris,  Justices. 

JOHN  HENDRICKSON,  Jr.  plaintiff  in  error  vs.  THE  PEOPLE  defend- 
ants in  error. 

On  a  criminal  trial,  it  is  no  objection  to  proving  a  confession  of  the  defendant, 
that  it  was  made  when  he  was  under  oath,  if  it  appear  that  it  was  free  and 
voluntary  and  not  made  under  the  influence  of  fear  or  hope. 

What  a  person  says,  when  examined  as  a  witness  in  a  legal  proceeding,  may 
be  used  in  evidence  against  him ;  but  the  statements  or  oath  of  a  party  ac- 
cused can  not  be  given  in  evidence.  Lewi*1  Case,  6  Carr.  fy  P.  161 ;  David's 
Case,  id.  177;  ana*  Owen's  case  9  Carr.  Sf  P.  238:  reviewed  and  overruled. 

Where  on  the  trial  of  a  party  for  the  murder  of  his  wife,  it  appeared  that  the 
prisoner  had  been  examined  as  a  witness  before  the  coroner's  inquest,  on  the 
evening  subsequent  to  the  death,  and  that  he  had  not  then  been  charged  or 
accused  of  the  crime,  and  that  his  statements,  then  made  under  oath,  were 
free  and  voluntary,  such  statements  were  held  to  be  properly  receivable  in 
evidence  against  him. 

Held  also,  that  evidence  of  conversations  between  the  prisoner  and  his  wife, 
and  between  the  prisoner  and  his  brother  in-lavv,  tending  to  show  an  aliena- 
tion of  affection  oil  his  part  in  regard  to  his  wife,  was  admissible  on  the 
questipn  of  motive. 

Held  also,  that  the  will  of  the  prisoner's  father-in-law  was  properly  received 
in  evidence,  for  the  purpose  of  showing  that  the  pecuniary  expectations, 
which  the  prisoner  might  have  entertained  by  reason  of  his  alliance  with  the 
family,  had  been  disappointed. 


ALBANY.  DECEMBER,   1853.  497 

The  People  v.  Hendrickson. 

The  prisoner  had  been  convicted  at  the  Oyer  and  Terminer 
in  Albany  county  of  the  murder  of  his  wife,  and  brought  a 
writ  of  error  to  this  court.  The  questions  decided  are  fully 
slated  in  the  opinion  of  the  court. 

A.  J.  Colvin  (Dist.  Att'y)  for  the  people. 
JV*.  Hill,  Jr.,  for  the  prisoner. 

By  the  Court,  HARRIS,  J.  —  On  the  evening  subsequent  to  the 
death  of  his  wife,  the  defendant  was  sworn  and  examined  as  a 
witness  before  the  Coroner's  inquest.  Upon  such  examination 
he  gave  an  account  of  the  circumstances  attending  the  death, 
after  which,  upon  being  asked  when  he  had  been  in  Albany, 
he  answered  that  it  was  two  weeks  ago  the  last  Saturday. 
Upon  being  asked  whether  he  had  not  been  there  since,  he, 
answering,  as  if  correcting  himself,  said  he  had  been  in  Albany 
a  week  ago  the  last  Saturday.  He  was  again  asked  whether 
he  had  not  b«en  in  Albany  still  later  than  that,  and  he  replied 
that  he  had  been  there  on  the  last  Saturday.  Upon  being 
inquired  of,  he  stated  the  object  for  which  he  went  to  Albany 
and  mentioned  several  places  where  he  had  been  while  there. 
He  said  he  did  not  remember  having  been  in  Springsteed's  drug 
store,  or  in  any  other  drug  store.  Upon  the  trial,  the  counsel 
for  the  prosecution  offered  to  prove  what  the  defendant  had 
thus  stated  before  the  Coroner's  inquest.  It  was  objected  to, 
on  the  ground  that  such  statements  were  not  voluntary.  The 
objection  was  overruled,  and  the  testimony  was  received.  No 
charge  had  been  made  against  the  defendant  at  the  time  he 
was  examined,  nor  is  there  any  evidence  that  he  was  suspected 
of  the  crime,  unless  the  fact  is  to  be  inferred  from  the  tenor  of 
his  examination.  The  question  is  thus  presented  whether, 
upon  a  trial  for  murder,  statements  made  by  the  defendant^ 
upon  oath,  before  the  jury  summoned  to  make  inquisition  con- 
cerning the  death,  and  before  he  had  been  accused  of  the 
murder,  are  admissible  as  evidence  for  the  prosecution. 

Confessions  have  been  appropriately  dirided  into  two  classes, 


408  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Hendrickson. 

judicial  and  extra-judicial.  (1  Greenleafs  Ev.  §216.)  The 
former  embraces  the  preliminary  examination  authorized  by 
statute,  when  a  party  accused  of  crime  is  brought  before  a 
magistrate.  Such  confessions,  attended,  as  they  are,  with  pe- 
culiar solemnities,  take  higher  rank  as  evidence  than  other 
mere  admissions  or  declarations.  Such  other  admissions  and 
declarations  constitute  the  class  of  extra-judicial  confessions. 
They  are  to  be  proved,  as  other  facts  are  proved,  and,  being 
proved,  are  to  be  submitted  to  the  consideration  of  the  jury. 

The  preliminary  examination,  which  the  magistrate,  before 
whom  a  person  accused  of  crime  is  brought,  is  authorized  to 
take,  must  be  conducted  in  the  manner  prescribed  by  law,  or  it 
will  be  deemed  irregular  and  rejected.  Thus  it  is  required 
that  the  examination  should  not  be  taken  upon  oath.  When- 
ever, therefore,  it  has  appeared  that  the  party  accused  has 
been  sworn,  the  examination  has  been  excluded.  (Smith's 
case,  1  Stark.  R.  242  $  River's  case,  7  Carr.  and  P.  177; 
Pi/cesly's  case,  9  Carr.  and  P.  124.)  This  rule  is  confined  to 
the  official  examination  of  the  party  accused.  It  is  no  objec- 
tion to  a  confession,  as  such,  that  it  has  been  made  when  the 
party  was  under  oath. 

Accordingly,  where  a  prisoner  has  been  examined  as  a  wit- 
ness upon  a  charge  against  another  for  the  same  offence,  his 
deposition  was  received  in  evidence  upon  his  own  trial  as  a 
confession.  Parke,  J.  said,  "  He  might,  on  that,  as  well  as  on 
any  other  occasion,  when  called  as  a  witnsss,  have  objected  to 
answer  any  questions  which  might  have  a  tendency  to  expose 
him  to  a  criminal  charge,  and  not  having  done  so,  his  deposi- 
tion is  evidence  against  him."  (Haworth's  case,  4  Carr.  and 
P.  254.)  In  Tubby' 's  case  ,(5  Carr.  and  P.  530)  it  was  pro- 
posed to  read  in  evidence  a  statement  made  upon  oath  by  the 
prisoner.  Vaughn,  B.  said,  "  The  question  is,  is  it  the  state- 
ment of  the  prisoner  upon  oath?  Clearly  it  is  not,  for  he  was 
not  a  prisoner  at  the  time  he  made  it."  In  the  case  of  Merce- 
ron,  (2  Starkie,  366,)  a  magistrate  was  tried  upon  an  indictment 
for  misconduct  in  office.  He  had  previously  leen  examined 
before  a  committee  of  the  House  of  Commons,  and  it  was  pro- 


ALBANY,  DECEMBER,  1853.  499 

The  People  v.  Hendrickson. 

posed  to  prove  what  he  had  said  upon  that  examination.  Th« 
evidence  was  objected  to,  not  because  the  statements  were 
made  upon  oath,  but  because,  having  been  compelled  to  attend 
before  the  committee,  the  declarations  were  not  voluntary,  but 
it  was  held  to  be  admissible. 

It  is  true  that  the  same  judge  before  whom  the  case  was 
tried  subsequently  questioned  the  correctness  of  the  report: 
(Rex  v.  Gilham,  1  Moody's  C.  C.  203)  but  so  far  as  it  is  enti- 
tled to  any  weight  as  an  authority,  it  is  against  the  doctrine 
that  a  confession  is  to  be  excluded  as  evidence  merely  because 
it  has  been  under  oath.  In  Wheater's  case,  (2  Moody's  C.  C 
45)  a  charge  had  been  made  against  the  prisoner  before  the 
Lord  Mayor  of  London  for  forgery,  but  the  complainant  failed 
to  make  such  a  case  as  would  warrant  a  commitment.  After 
this,  the  prisoner  was  examined  before  commissioners  in  bank- 
ruptcy, in  relation  to  the  same  transactions.  Upon  his  trial, 
upon  an  indictment  for  forgery,  his  statements,  when  examined 
before  the  commissioners,  were  offered  in  evidence  and  were 
received.  The  question  was  subsequently  presented  to  the  fif- 
teen judges.  It  was  insisted  that,  the  prisoner  having  been 
compelled  to  testify,  his  answers  were  not  admissible  as  evi- 
dence against  him.  But  the  judges  were  of  opinion  that  the 
evidence  was  properly  received. 

In  the  case  of  Broughton,  tried  in  North  Carolina,  (7  Iredell, 
96)  the  defendant  had  been  examined  on  oath  before  the  grand 
jury  touching  the  murder  for  which  he  was  subsequently 
indicted.  On  the  trial,  his  statements  before  the  grand  jury 
were  offered  in  evidence  and  received.  Upon  an  application 
for  a  new  trial  it  was  insisted  that  the  testimony  before  the 
grand  jury  ought  not  to  have  been  received,  because,  having 
been  given  under  oath,  it  was  not  voluntary.  The  motion  for 
a  new  trial  was  denied.  Ruffin,  Ch.  J.,  said,  "  It  is  certainly 
no  objection  to  the  evidence,  merely  that  the  statement  of  the 
prisoner  was  given  by  him  as  a  witness  under  oath.  He  might 
have  refused  to  answer  questions  when  he  could  not  do  so  with- 
out criminating  himself,  and  the  very  ground  of  that  rule  of 
law  is,  that  his  answers  are  deemed  voluntary  and  may  be 

VOL.  I.  52 


410 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  ».  Hendrickson. 


used  afterwards  to  criminate  or  charge  him  in  another  proceed- 
ing.    Such  is  clearly  the  law." 

The  only  valid  objection  that  can  be  taken  to  any  extra-judi- 
cial confession  is,  that  it  was  not  voluntary.  No  witness  is 
bound  to  answer  any  question,  when  the  answer  will  tend,  in 
the  least  degree,  to  criminate  him.  Of  this  he  is  made  the 
judge.  If,  waiving  the  right  to  object  on  this  ground,  he 
proceeds  to  answer,  his  statements  are  to  be  regarded  as  vohm 
tary  and  may  be  used  against  him  for  all  purposes.  (2  Stark. 
Ev.  50;  1  Phil.  Ev.t  Cowen  fy  H.  ed.  110;  Roscoe's  Cr.  Ev.,  ed. 
1852,  38;  1  Greenleafs  Ev.,  §219.)  In  every  such  case, 
therefore,  the  proper  inquiry  is,  not  whether  the  statement  was 
made  under  oath,  but  whether  it  was  free  and  voluntary,  or  was 
made  under  the  influence  of  fear  or  hope.  In  the  one  case,  the 
confession  may  always  be  proved —  in  the  other,  never.  There 
may  be  difficulty  in  determining  whether  a  confession  has  been 
made  under  the  influence  of  hope  or  fear,  but,  that  question 
being  determined,  the  question  of  admissibility  is  also  deter- 
mined. 

I  am  aware  that  there  are  three  or  four  reported  cases  which 
have  been  regarded  as  sustaining  a  different  doctrine.  The  princi- 
pal of  these  are  Lewis's  case,  (6  Can.  and  P.  16  J)  Davis' s  case,  (6 
Carr.  and  P.  177)  and  Owen's  case.  (9  Carr.  and  P.  238.)  These 
are  the  cases  principally  relied  upon  as  sustaining  the  doctrine 
that  a  statement  made  upon  oath  is  not  to  be  regarded  as  vol- 
untary, and  therefore  not  receivable  as  evidence.  A  brief 
examination  of  these  cases  will  show,  I  think,  that,  instead  of 
sustaining  the  position  in  support  of  which  they  are  cited,  they 
may  all  be  referred  to  the  general  criterion  in  respect  to  the 
admissibility  of  extra-judicial  confessions  already  stated. 

In  Lewis's  case  the  charge  was  poisoning.  The  magistrate, 
on  the  day  he  committed  the  defendant,  had  summoned  her  with 
several  other  persons  before  him  and  examined  them  all  on 
oath  touching  the  poisoning.  When  he  had  concluded  the  ex- 
amination he  committed  Lewis  for  trial.  Baron  Gurney,  upon 
the  trial,  refused  to  receive  the  examination,  thus  taken,  as 
evidence.  He  said  that  as  the  deposition  had  been  taken  at 


ALBANY,   DECEMBER,  1853. 


The  People  v.  Hendrickson. 


the  same  time  as  all  the  other  depositions  on  which  she  was 
committed,  and  on  the  very  same  day  on  which  she  was  com- 
mitted, he  did  not  think  it  was  receivable.  He  added,  also, 
that  he  did  not  think  the  examination  was  perfectly  volun- 
tary. In  Davis's  case,  a  father  and  daughter  had  together  been 
indicted  for  receiving  stolen  goods.  Upon  the  trial,  it  appeared 
that  the  daughter  had  been  examined  as  a  witness  against  her 
father  before  the  committing  magistrate.  It  was  proposed  to 
prove  what  she  then  said,  but  Baron  Gurney  refused  to  hear  it. 
He  said,  "  if,  after  having  been  a  witness,  you  make  her  a  pri- 
soner, nothing  of  what  was  said  then,  can  be  admitted  as 
evidence." 

In  Owen's  case,  (9  Carr.  and  P.  83  and  238)  there  were 
three  defendants.  They  were  twice  tried  —  once  for  rape  and 
then  for  murder.  Before  the  Coroner's  inquest  was  held,  they 
had  all  been  arrested,  and  they  were  brought  before  the  coroner 
in  custody.  They  were  each  asked  whether  they  wished  to 
give  evidence,  and  each  said  he  did.  They  were  then  sever- 
ally sworn  and  each  made  his  statement  upon  oath.  These 
statements  were  offered  in  evidence.  It  was  conceded  by  the 
counsel  for  the  defendants  that,  if  they  had  come  voluntarily 
before  the  coroner  as  witnesses,  their  statements  would  have 
been  evidence  against  them.  He  placed  his  objection  upon 
the  ground  that  they  had  been  brought  before  the  coroner  as 
prisoners,  and  not  as  witnesses.  They  had  been  treated  by  the 
coroner  as  persons  charged  with  crime,  and  not  as  witnesses, 
for  before  they  were  examined,  he  inquired  whether  they  were 
desirous  of  giving  evidence.  Under  such  circumstances,  the 
examination  might  well  be  regarded  as  judicial  in  its  char- 
acter, and  not  as  a  mere  examination  of  witnesses;  and  yet, 
upon  the  first  trial,  the  prosecution  was  allowed  to  prove  their 
statements.  Upon  the  trial  for  murder,  the  evidence  was  ex- 
cluded by  Baron  Gurney  —  and,  I  think,  properly.  The  exam- 
ination itself  was  illegal,  and  the  statements  could  not  be 
regarded  as  voluntary.  The  examination  of  a  party  in  custody 
upon  a  charge  of  crime  has  never  been  allowed  to  be  taken 
upon  oath,  and  it  is  well  settled  that  where  a  judicial  examina- 


412  DECISIONS  IN  CRIMINAL  C^SES. 

The  People  v.  Hendrickson. 

tion  is  rejected  for  irregularity,  proof  of  the  statements  made 
upon  such  examination  will  not  be  received. 

Besides  these  three  cases,  which,  it  should  be  observed,  are 
all  nisi  prius  decisions,  and  made,  too,  by  the  same  judge, 
Wheeley's  case  (8  Carr.  and  P.  250)  has  been  referred  to  for 
the  same  purpose.  In  that  case,  the  defendant  had  been 
accused  of  poisoning  his  wife.  He  had  been  brought  before 
the  coroner,  upon  the  inquest,  in  custody.  He  there  made  a 
statement  which,  when  offered  in  evidence  against  him  upon 
his  trial,  purported  to  have  been  made  upon  oath.  Baron 
Alderson  held  that,  being  made  upon  oath,  it  could  not  be  re- 
ceived. The  report  of  the  case  is  very  meagre,  but  enough 
appears  to  show  that  the  defendant  was  brought  before  the 
coroner  as  a  party  accused,  and  not  as  a  witness.  This  case 
was  referred  to  upon  Owen's  first  trial,  which  took  place  the 
next  year.  (9  Carr.  and  P.  S3.)  It  is  there  stated  that  Baron 
Alderson  had  rejected  the  statement  of  the  defendant,  because  it 
was  on  oath,  and  taken  while  the  defendant  was  in  custody. 
Williams,  J.,  said  he  knew  that  his  brother  Alderson  had  rejected 
the  evidence,  but  that  he  also  knew  that  there  had  been  a 
reaction  in  opinion,  and  he  would  therefore  receive,  the 
evidence.  It  is  stated  elsewhere  that  Baron  Alderson  was  in 
the  next  court  at  the  time,  and  that  Justice  Williams  had  con- 
sulted with  him.  See  Joy  on  the  Mmissibility  of  Confessions  t 
63. 

Mr.  Greaves,  the  learned  editor  of  Russell's  Treatise  on 
Crimes,  in  a  note  referring  to  the  cases  of  Lewis  and  Davis, 
above  cited,  says  that,  after  the  decision  in  Wheater's  case,  it 
may  perhaps  be  doubted  whether  the  fact  that  the  prisoners  had 
been  examined  on  oath  as  witnesses  was  a  sufficient  reason  for 
rejecting  their  depositions.  (2  Russ.  on  Crimes,  Phil.  ed.  of  1852 
856,  note.)  If  the  depositions  offered  in  evidence  were  to  be 
regarded  as  having  been  made  by  witnesses,  then,  obviously, 
they  are  within  the  principle  of  Wheater's  case,  and  ought  not 
to  have  been  rejected.  If,  on  the  other  hand,  they  are  to  be 
considered  as  the  judicial  examination  of  a  party  accused  or 
suspected  of  crime,  as  I  think  they  may  be,  although  such 


NEW  YORK,  DECEMBER,  1852. 


The  People  v  Hendrickson. 


examination  may  have  been  irregularly  conducted,  then  they 
were  properly  excluded. 

The  rule  applicable  to  such  cases  is,  I  think,  accurately 
stated  b>  Joy,  in  the  treatise  above  cited.  "  A  statement," 
be  says,  "  not  compulsory,  made  by  a  party,  not  at  the  time  a 
prisoner  under  a  criminal  charge,  is  admissible  in  evidence 
against  him,  although  it  is  made  upon  oath."  The  same 
writer  adds,  that  "  there  are  conflicting  opinions  of  judges  at 
nitsi  prius  on  this  point,  but  the  proposition  appears  to  be 
established  by  high  authority."  Mr.  Phillips,  1oo,  in  his  last 
edition,  after  noticing  the  decisions  on  the  subject,  says.  "  it 
may  be  laid  down  generally,  (citing  Wheater's  case,  among 
others,  for  the  position,)  that  a  statement  upon  oath  by  a  per- 
son, not  being  a  prisoner,  and  when  no  suspicion  is  attached  to 
him,  the  statement  not  being  compulsory,  nor  made  in  pursu- 
ance of  any  promise  of  favor,  is  admissible  in  evidence  against 
him."  See  Roscoe's  Crim.  Ev.,  (Phil.  ed.  of  1852,)  50.  The 
author  can  not  be  understood  as  using  the  term  "  suspicion  " 
in  its  proper  sense. 

It  can  not  be  that  the  fact  whether  or  not  some  person  may 
have  entertained  an  undisclosed  opinion  or  conjecture,  in 
respect  to  the  guilt  of  the  party,  can  be  made  a  criterion  for 
determining  whether  a  confession  is  admissible  in  evidence  or 
not.  The  suspicion  must  have  so  far  become  tangible  as  to 
make  it  the  subject  of  proof.  The  party  must,  at  least,  have 
been  accused  though  he  may  not  have  been  arrested.  That  this 
is  so,  is  evident  from  the  facts  in  Wheater's  case,  upon  which, 
chiefly,  Mr.  Phillips  relies  in  support  of  his  proposition. 
Wheater  had  been  accused  of  forgery.  He  had  been  arrested 
upon  the  charge  and  brought  before  the  Lord  Mayor  for  exam- 
ination. The  proof  against  him  not  being  sufficient  to  warrant 
a  commitment,  he  was  discharged.  After  this,  he  was  exam- 
ined as  a  witness  in  some  bankrupt  proceeding.  Having  been 
indicted  for  the  forgery,  his  statements  as  a  witness  were 
received  in  evidence  against  him. 

Of  all  the  English  cases  that  have  been  cited,  this  alone  was 
brought  before  the  fifteen  judges.  The  decision  was  sustained. 


414  DECISIONS  IN  CRIMINAL  CASES. 

i • 

The  People  v.  Hendrickson. 

It  was  held  that,  inasmuch  as  the  defendant,  \vhen  he  testified, 
was  not  charged  with  the  crime,  and  had  not  objected  to 
answer,  as  he  might,  on  the  ground  that  his  statements  might 
have  a  tendency  to  criminate  him,  such  statements  might  be 
proved  as  his  voluntary  confessions.  If  the  mere  fact  that 
somebody  had  thought  the  defendant  guilty  of  the  crime,  at  the 
time  he  testified,  would  have  been  sufficient  to  exclude  the  evi- 
dence, the  proof  of  this  fact  was  at  hand.  But  he  was  exa- 
mined as  a  witness  in  a  legal  proceeding.  He  was  not  then 
under  accusation  for  the  crime,  and,  under  these  circumstances, 
it  was  deliberately  adjudged  that  what  he  said  was  to  be 
regarded  as  his  voluntary  confession.  Broughton's  case,  already 
noticed,  is  to  be  regarded  as  sustaining  the  same  doctrine. 

From  this  review,  I  think  it  must  be  apparent  that  it  is  only 
when  a  party  accused  has  been  examined  on  oath  that  his 
statements  are  to  be  rejected  when  offered  in  evidence  against 
him.  The  general  rule,  that  what  a  person  says,  wrhen  exam- 
ined as  a  witness  in  a  legal  proceeding  may  be  used  in  evidence 
against  him,  has  not  been  restricted  or  qualified.  The  witness 
speaks  at  the  peril  of  having  his  statements  turned  against 
himself.  He  may  refuse  to  answer  any  question,  the  answer  to 
•which  may  tend,  in  any  degree,  to  involve  him  in  a  criminal 
charge.  If,  waiving  this  privilege,  he  proceeds  to  testify,  his 
statements,  though  upon  oath,  are  to  be  regarded  as  free  and 
voluntary,  and  are  received  as  evidence  against  him. 

It  has  been  said  that  the  very  fact  that  a  witness  objects  to 
answer  will  excite  suspicion,  and  may  thus  tend  to  involve  him 
in  an  accusation.  This  may  be  so.  A  refusal  to  answer  a 
pertinent  question  may  be  supposed  to  betray  conscious  guilt; 
but  against  this  the  law  has  furnished  no  protection.  It  guards 
the  witness  against  involuntary  self-crimination  but  not  against 
the  unfavorable  surmises  which  his  refusal  to  answer  may  sug- 
gest. It  is  only  because  his  answer,  if  given,  will  be  deemed 
to  be  voluntary,  that  a  witness  is  excused  from  answering  in 
any  case. 

In  the  case  before  us,  the  defendant  was  examined  before  the 
coroner's  inquest,  in  the  capacity  of  a  witness.  -He  had  not 


ALBANY,  DECEMBER,  1853. 


The  People  e.  Hendrickson. 


then  been  accused;  nor  was  he,  in  any  legal  sense  of  the  term, 
suspected  of  the  crime  for  which  he  was  subsequently  indicted 
and  tried.  He  had  the  same  right  as  any  other  witness  to  de- 
cline answering  any  question,  if,  in  his  own  opinion,  the 
answer  would  tend  to  involve  him  in  a  criminal  charge.  If, 
after  having  so  declined,  he  had  still  been  required  to  answer, 
what  he  said  could  not  have  been  used  against  him.  Having 
testified,  and  having  omitted  to  avail  himself  of  his  privilege 
to  decline  answering,  his  statements  must  be  deemed  free  and 
voluntary,  and  were  properly  received  in  evidence  against  him 
upon  the  trial. 

I  think,  too,  that  evidence  of  the  conversations  between  the 
defendant  and  his  wife,  and  also  the  conversation  between  the 
defendant  and  his  brother-in-law,  Hungerfordj  was  properly 
received.  The  defendant  was  charged  with  the  murder  of  his 
wife.  The  marital'  relation  existing  between  them  furnished 
a  strong  presumption  in  favor  of  his  innocence.  In  the  absence 
of  proof  to  the  contrary  it  was  to  be  presumed  that  he  loved 
her  and  would  protect  her. 

It  was  important,  therefore,  for  the  prosecution,  if  it  could, 
to  repel  this  presumption  by  proof  that  the  defendant  had  dis- 
regarded the  claims  of  connubial  duty.  For  this  purpose, 
evidence  tending,  however  slightly,  to  show  an  alienation  of 
affection  —  any  thing  from  which  a  jury  might  infer  a  desire  to 
be  free  from  the  burden  of  one  who  was  no  longer  the  object 
of  regard,  was  competent.  Suppose  it  could  have  been  proved 
that  the  defendant  had  said  that  he  hated  his  wife,  and  wished 
to  be  rid  of  her,  would  any  one  doubt  that  this  might  be  proved 
to  rebut  the  presumption  that  he  loved  her?  So  any  conduct 
or  declarations  evincing  unkindness  or  disrespect,  though  less 
decisive  in  their  character  as  evidence,  were  admissible  as 
tending  to  show  the  state  of  the  defendant's  feelings  towards 
his  wife. 

Nor  do  I  think  it  was  error  to  allow  the  will  of  Van  Deusen, 
the  defendant's  father-in-law,  to  be  given  in  evidence.  By 
that  will,  the  wife  of  the  testator  had  become  entitled  to  the 
whole  estate  for  life.  It  was  only  upon  the  death  of  her 


416 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v  Hendrickson. 


mother,  that  the  defendant's  wife  would  receive  any  part  of  her 
father's  property.  Though  the  evidence  may  not  have  been 
very  important,  it  was  not  irrelevant  to  show  that  any  pecuni- 
ary expectations  which  the  defendant  might  have  entertained, 
by  reason  of  his  alliance  with  the  family,  had  been  disappointed 
As  this  is  a  case  involving  the  life  of  the  defendant,  I  have 
examined  it  with  a  disposition  to  give  him  a  new  trial,  if  any, 
even  the  slightest  error  should  be  found  to  have  been  commit- 
ted. But,  upon  the  most  deliberate  and  anxious  consideration 
of  all  the  questions  presented,  I  am  constrained  to  say  that  I 
find  no  error  in  the  proceedings.  The  judgment  of  the  court 
of  Oyer  and  Terminer  should,  therefore,  be  affirmed. 

Judgment  affirmed.(a) 

(a)  The  judgment  in  this  case  was  affirmed  by  the  court  of  appeals  at  the 
March  term,  1854.  The  cause  had  been  argued  in  that  court  at  the  previous 
January  term  by 

John  K.  Porter,  for  prisoner. 

Hamilton  Harris,  (Dist.  Att'y),  for  the  people. 

The  following  opinion  was  delivered  by  PARKER,  J.  The  wife  of  Hendrick- 
son  died  on  Sunday,  the  6th  of  March.  On  the  evening  of  the  next  day  a  coroner's 
inquest  was  held,  before  which  Hendrickson  was  sworn  and  examined  as  a  wit- 
ness. He  stated  the  circumstances  attending  the  death  of  his  wife  When  inter- 
rogated as  to  his  having  been  in  Albany,  he  said  he  had  been  there  "two  weeks 
ago  last  Saturday;"  and  when  asked  if  he  had  not  been  there  since,  he  said,  "  O, 
yes,  I  believe  I  was  there  a  week  ago  last  Saturday,"  as  if  correcting  himself; 
and  on  being  further  interrogated,  said,  "  I  was  there  last  Saturday."  He 
further  stated  the  object  of  his  going  to  Albany,  and  mentioned  several  places 
in  the  city  where  he  had  been,  but  said  he  did  not  remember  having  been  into 
Spnngsteed's  drug  store  or  any  other  drug  store. 

Upon  the  trial  at  the  Oyer  and  Terminer,  the  counsel  for  the  prosecution  of- 
fered to  prove  the  statement  so  made  at  the  coroner's  inquest.  The  counsel  for 
the  prisoner  objected  to  the  evidence,  on  the  ground  that  what  the  prisoner 
swore  to  on  that  occasion  was  not  a  voluntary  statement.  The  objection  was 
overruled  and  the  evidence  received,  to  which  the  counsel  for  the  prisoner  ex- 
cepted;  and  the  alleged  erroneousness  of  that  decision  constitutes  the  first 
ground  on  which  the  prisoner  relies  for  a  reversal  of  the  judgment. 

I.  The  general  rule  is,  that  all  a  party  has  said  which  is  relevant  to  the 
questions  involved  in  the  trial,  is  admissible  in  evidence  against  him.  The 
exceptions  to  this  rule  are  where  the  confession  has  been  drawn  from  the 
prisoner  by  means  of  a  threat  or  a  promise,  or  where  it  is  not  voluntary,  b«- 


ALBANY.  DECEMBER,  1853. 


The  People  v.  Hendrickson. 


cause  obtained  compulsorily  or  by  improper  influence.  It  is  not  claimed  in  this 
case,  that  the  statement  in  question  was  obtained  by  means  of  any  promise  or 
threat,  or  by  any  inducement  whatever;  nor  is  it  supposed  that  there  was  any 
compulsion  or  any  influence  affirmatively  exercised  upon  the  mind  of  the  pri- 
soner, beyond  what  is  sought  to  be  inferred  from  the  fact,  that  he  was  required 
to  testify  as  a  witness.  But  it  is  contended  that  because  he  was  so  required  to 
testify,  upon  a  general  inquiry  into  the  cause  of  the  death  of  his  wife,  his 
statement  was  not  voluntary,  and  should  have  been  excluded.  The  record 
shows  that  the  objection  at  the  trial  was  placed  only  on  the  ground  that  the 
statement  was  not  voluntary. 

Hendrickson  was  not  in  custody.  He  made  no  objection  to  being  sworn  as  a 
witness,  or  to  answering  any  question  that  was  put  to  him.  He  was  treated 
in  every  respect,  like  the  other  witnesses.  At  the  time  of  his  examination, 
no  circumstances  had  been  developed  warranting  a  suspicion  against  him.  The 
post  mortem  examination  did  not  take  place  till  the  next  day,  and  it  was  not 
until  the  second  day  after  his  testimony  before  the  coroner's  inquest  that  he 
was  arrested  under  a  warrant  issued,  not  by  the  coroner,  but  by  a  police  justice 
of  the  city  of  Albany.  His  statement  as  a  witness  was  in  no  respect  an  ad- 
mission of  guilt.  On  the  contrary,  it  was  a  denial  of  material  facts  attempted. 
on  his  trial,  to  be  established  by  other  witnesses.  His  testimony  was  calcu- 
lated to  ward  off  suspicion  from  himself,  not  to  attract  it  towards  him. 

The  question  presented,  therefore,  is,  whether,  under  the  circumstances,  the 
statement  of  a  witness  is  to  be  excluded  on  the  ground  that  it  was  not 
voluntarily  made. 

Several  English  nisi  prius  decisions  were  cited  on  the  argument,  which  it 
its  necessary  to  examine. 

Merceron's  case,  (  2  Starkie,  R.  366,)  decided  in  1818.  was  an  indictment 
against  a  magistrate  for  having  corruptly  and  improperly  granted  licences  to 
public  houses  which  were  his  own  property.  ABBOT,  J.,  permitted  the  prose- 
cution to  prove  what  the  defendant  had  said  in  the  course  of  his  examination 
before  a  committee  of  the  House  of  Commons,  appointed  for  the  purpose  of  in- 
quiring into  the  police  of  the  metropolis,  though  it  was  objected  that  the 
statement  had  been  made  under  a  compulsory  process  from  the  House  of  Com- 
mons, and  that  the  declarations  were  not  voluntary. 

In  the  case  of  Ha  worth.  (4  Carr.  and  Payne,  254.)  decided  in  1S30,  it  ap- 
peared that  before  the  prisoner  was  charged  or  suspected,  a  person  named 
Shearer  had  been  examined  on  the  charge  of  forgery,  and  that  the  prisoner  was 
called  as  a  witness  against  Shearer,  and  his  deposition  taken.  The  counsel  for 
the  prosecution  proposed  to  read  this  deposition  as  evidence  against  Haworth, 
which  was  objected  to.  Justice  J.  PARKE  said,  "•  I  think  that  I  ought  to  receive 
this  evidence.  The  prisoner  was  not,  when  he  made  this  deposition,  charged 
with  any  offence,  and  he  might,  on  that  as  well  as  on  any  other  occasion  when 
called  as  a  witness,  have  objected  to  answer  any  question  which  might  have 
a  tendency  to  expose  him  to  a  criminal  charge;  and  not  having  done  j->,  his 
deposition  is  evidence  against  him. 

VOL.  I.  53 


418 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Hendrickson. 


In  a  note,  by  the  reporter,  to  this  case;  it  is  said,  that  in  a  case  tried  at 
Worcester,  where  it  appeared  that  a  coroner's  inquest  had  been  held  on  the 
body  of  A,  and  it  not  being  suspected  that  B  was  at  all  concerned  in  the  mur 
der  of  A,  the  coroner  had  examined  B  upon  oath  as  a  witness.  PARKE,  J., 
would  not  allow  the  deposition  of  B  so  taken  on  oath  on  the  coroner's  inquest 
to  be  read  in  evidence,  on  the  trial  of  an  indictment  afterward  found  against  B 
for  the  same  murder. 

I  can  not  find  that  this  anonymous  case  is  anywhere  reported  more  fully, 
It  would  be  much  more  satisfactory,  to  know  the  particular  circumstances  of 
the  case  and  the  grounds  for  the  decision.  Without  them,  it  is  entitled  to  but 
little  weight  as  authority.  And  so  it  seems  to  have  been  viewed  by  LITTLE- 
DALE,  Justice,  in  the  case  of  Rex  agt.  Clewes,  tried  before  him  during  the 
same  year,  and  reported  as  to  other  points  in  4  Carr.  and  P.,  221.  In  Mr. 
Greaves'  note  w,  $  Russ.  on  Crimes,  SCO,  7  Jim  ed.,  on  the  authority  of  his 
manuscript  notes,  he  says,  the  grand  jury  asked  L  ITT  LED  ALE,  J.,  "  Can  evidence 
of  a  prisoner  who  was  examined  on  oath  before  the  coroner  as  a  witness  be  ad- 
mitted as  evidence  against  the  same  person,  when  subsequently  indicted  for  the 
murder  of  the  person  on  whose  body  the  inquest  was  held?1'  LITTLEDALE,  J., 
answered  in  the  affirmative;  when,  the  case  referred  to  in  the  anonymous  nott 
being  mentioned,  the  judge  (Littledale)  directed  the  grand  jury  to  receive  the 
evidence  and  leave  the  point  for  discussion  on  the  trial. 

Tubby's  case.  (0  Carr.  and  P.,  530.)  tried  in  1833,  was  an  indictment  for 
burglary.  Andrews,  for  the  prosecution,  proposed  to  read  a  statement  made 
upon  oath  by  the  prisoner,  at  a  time  when  he  was  not  under  any  suspicion. 
Pendergast  objected  that  it  was  a  violation  of  the  rule  of  law,  which  held  that 
a  prisoner  should  not  be  sworn.  VAUGHAN,  B.,  said,  "  I  do  not  see  any  ob- 
jection to  its  being  read,  as  no  suspicion  attached  to  the  party  at  the  time.  The 
question  is,  is  it  the  statement  of  the  prisoner  under  oath?  Clearly  it  is  not, 
for  he  was  not  a  prisoner  at  the  time  he  made  it." 

In  Rex  agt.  Lewis,  (6  Carr.  and  P.  161.)  decided  also  in  1833,  several  per- 
sons, one  of  whom  was  the  prisoner,  were  summoned  before  the  committing 
magistrate  touching  the  poisoning  of  C.  No  person  was  then  specifically 
charged  with  the  offence.  The  prisoner  was  sworn,  and  made  a  statement, 
and  at  the  conclusion  of  the  examination  she  was  committed  for  trial.  It  was 
held  that  this  statement  was  not  receivable  in  evidence  against  the  prisoner. 
GURNEY.  B.,  said  this  case  was  quite  distinguishable  from  that  of  Rex  agt. 
Tubby,  and  that  under  the  circumstances  he  should  have  agreed  with  his 
brother  Vaughan.  •'  But  (he  said)  this  being  a  deposition  made  by  the  pris- 
oner at  the  same  time  as  all  the  other  depositions  on  which  she  was  committed, 
and  on  the  very  same  day  on  which  she  was  committed.  I  think  it  is  not  re- 
ceivable. I  do  not  think  this  examination  perfectly  voluntary."  It  has  been 
supposed  the  prisoner  was  brought  before  the  magistrate  on  a  charge  or 
suspicion  of  guilt,  but  Greaves  says,  in  his  notes.  (2  Russ.  on  Cr.  857,  7  Jim. 
ed.  note  n.)  that  he  was  counsel  in  this  case,  and  that  the  prisoner  was  sum- 
moned in  the  ordinary  way,  as  a  person  who  could  give  some  evidence  touching 
the  matter,  and  not  because  any  suspick  n  attached  to  her. 


ALBANY.  DECEMBER,   1653       .  419 


The  People  «.  Hendrickson. 


In  Rex  agt.  Davis,  (6  Carr.  and  P.  177,)  also  decided  in  1833,  the  daughter 
had  been  examined  as  a  witness  before  the  committing  magistrate  against  her 
father,  and  was  then  committed  as  a  joint  receiver  of  stolen  goods  with  him. 
Her  statement  was  excluded  as  evidence  against  her  on  the  trial  by  GURNKY  B., 
on  the  same  ground,  as  in  Rex  agt.  Lewis.  In  regard  to  this  case,  Mr. 
Greaves  says.  (2  Russ.  on  Cr.  8-37,  note  n,  7  Am.  ed  ,)  that  the  ground  of  the 
decision  was,  not  that  there  was  a  suspicion  in  the  mind  of  the  magistrate,  or 
even  that  the  prisoner  might  be  aware  that  there  was  such  a  suspicion,  but  that 
t"he  prisoner  had  been  examined  on  oath  as  a  witness,  and  says,  that  after  the 
decision  in  the  late  case  of  Rex  agt.  Wheater,  (to  which  I  shall  refer  hereafter.) 
it  may  be  doubted  whether  that  was  a  sufficient  reason  for  rejecting  the  deposi- 
tion. 

In  Regina  agt.  Wheeley,  decided  in  1838,  (8  Carr.  and  P.  250,)  a  party 
who  was  charged  with  murder  made  a  statement  before  the  coroner  at  the  in- 
quest, which  was  taken  down.  The  paper  purported  that  the  statement  was 
made  on  oath.  Aldeison,  B.,  held  on  the  trial  of  the  party  for  murder,  that 
the  statement  was  not  receivable,  and  that  parol  evidence  was  not  admissible 
to  show  that  no  oath  had  in  fact  been  administered  to  the  prisoner.  If  this 
was  a  case  of  the  examination  of  a  prisoner,  and  not  of  a  witness,  as  it  has 
been  understood  to  be  by  commentators,  (Russ.  on  Cr.  85-3  and  SGO,  and  notes.} 
its  correctness  will  not  be  questioned,  and  it  can  have  no  bearing  upon  the 
question  now  before  us. 

The  next  case,  in  order  of  time,  was  Regina  agt.  Wheater,  (2  Moody's  Crown 
Cases,  4-3.)  decided  in  1838,  which  was  an  indictment  for  forgery.  On  the 
trial,  before  COLRIDGE  J.,  'the  examination  of  the  prisoner  previously  taken 
on  oath,  as  a  witness,  before  the  commissioners  of  bankruptcy,  concerning  the 
bills  alleged  to  be  forged,  was  held  admissible  as  evidence  against  him.  The 
opinion  of  all  the  judges,  was  desired  on  this  point,  and  the  case  was  argued  be- 
fore all  the  judges,  except  Park,  J.J  and  Gurney,  B.,  who  held  that  theevidence 
Had  been  properly  received. 

In  Retina  agt.  Owen  and  al,  (9  Carr,  $  P.  83,)  tried  in  1839,  the  defend- 
ants were  indicted  for  rape.  The  prosecution  offered  to  prove  the  statements 
made  by  Owen  on  oath  at  the  inquest  held  on  the  body  of  the  person  ravished, 
while  the  defendants  were  in  custody.  The  counsel  for  the  prisoners  admitted 
that  where  witnesses  had  been  examined  voluntarily,  their  deposition  might 
afterward  be  read  against  them;  but  objected  that  these  defendants  were  in 
custody,  and  cited  the  case  of  Wheeley,  where  Baron  Alderson  rejected  the 
deposition  because  it  was  on  oath  and  taken  while  in  custody.  But  WILLIAMS, 
J..  said,  u  I  know  that  my  brother  Alderson  did  so;  but  I  also  know  that  there 
has  been  a  reaction  in  opinion,  (if  I  may  be  allowed  the  expression.)  I  shall 
therefore  receive  the  evidence  and  reserve  the  point,  if  it  shall  become  neces- 
sary." It  is  said  that  Baron  Alderson,  who  had  tried  Wheeley's  case,  was  in 
the  next  court,  at  this  time,  and  that  Williams,  J.,  had  consulted  with  him  in 
an  earlier  part  of  the  case.  (Joy  on  Confessions.  62.) 

In  Regina  agt.  Owen  and  others,  (9  Carr.  $  P.  248,)  the  same  defendant 
tried  in  1840  for  the  murder  of  the  person  ravished;  and  Gurney,  B.  re 


420  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Hendrickson. 

fined  to  receive  in  evidence  the  deposition  on  oath  of  the  prisoners  taker,  before 
the  coroner's  inquest,  though  it  must  have  been  known  they  had  been  received 
on  the  previous  trial  of  the  same  prisoners  for  rape.  Baron  GuRNEY,  however, 
cited  Wheater's  case,  then  recently  tried  before  Colriedge,  and  admitted  he 
could  not,  on  principle,  see  the  distinction  between  that  and  some  of  the  other 
cases. 

In  the  later  case  of  Regina  agt.  Sandy's  (1  Carr  4"  Marsh.  34-5,)  decided  in 
1841,  the  prisoner  was  tried  for  murder,  and  ERSKINE,  J.  admitted  in  evidence 
her  deposition  taken  at  the  coroner's  inquest,  and  reserved  the  point  for  the 
consideration  of  the  fifteen  judges. 

All  the  decisions  to  which  I  have  referred,  except  that  in  the  case  of  Wheater, 
were  made  at  nisi  prius,  and  their  general  current  is  certainly  in  favor  of  the 
admissibility  of  the  evidence  in  question;  but  to  give  them,  or  any  of  them, 
much  weight  as  authority,  it  is  necessary  to  understand  the  reasons  that  go- 
verned, and  to  see  on  what  principles  they  are  based.  Without  that,  decisions 
made  at  the  assizes,  necessarily  without  time  for  consultation  and  examination, 
can  avail  but  little  in  deciding  a  controverted  question  of  law. 

So  far  as  the  evidence  was  rejected  on  .the  ground  that  the  statement  was  on 
oath,  as  in  the  case  of  Davis  and  others,  it  must  now  be  regarded  as  settled  by 
the  decision  of  all  the  judges  in  Wheater's  case  above  cited,  that  that,  of  itself, 
constitutes  no  objection.  Mr.  Joy,  in  his  treatise  on  the  admissibility  of  con- 
fessions, reviews  all  the  decisions  at  nisi  prius,  apparently  conflicting,  and 
comes  to  the  conclusion  that  the  decision  by  all  the  judges  in  Wheater's  case 
establishes  the  principle  that  a  statement  not  compulsory,  made  by  a  party  not 
at  the  time  a  prisoner  under  a  criminal  charge,  is  admissible  in  evidence  against 
him,  although  it  is  made  upon  oath.  (Joy  on  Confessions,  §  8,  62.) 

It  is  now  regarded  as  a  well  settled  rule,  and  recognized  in  the  elementary 
books,  that  where  a  witness  answers  questions  upon  examination  on  a  trial 
tending  to  criminate  himself,  and  to  which  he  might  have  demurred,  his  an- 
swers maybe  used  for  all  purposes.  (2  Starkiis  Ev.  50;  Roscoe's  Cr.  Ev.  45.) 
Such  answers  are  deemed  voluntary,  because  the  witness  may  refuse  to  answer 
any  question  tending  to  criminate  him.  (1  Green.  Ev.  §  22-5.)  If,  however, 
he  should  be  compelled  to  answer  after  claiming  his  privilege,  his  answer  will 
be  deemed  compulsory,  and  can  not  be  given  in  evidence  against  him. 

Where  the  evidence  offered  has  been  rejected  on  the  ground  that  the  state- 
ment was  made  when  the  prisoner  was  in  custody  charged  with  crime,  as  in 
AVheeley's  case  and  Owen's  case,  it  seems  to  me  clear  that  it  was  properly 
excluded.  Because  these  were  cases  of  the  examination  of  a  prisoner,  not  of  a 
witness.  In  such  cases  it  is  a  judicial  examination,  and  it  should  not  be  on 
oath,  and  certain  precautions  for  the  protection  of  the  accused  are  always  ob- 
served. In  this  state  such  examinations  are  regulated  by  statute.  (2  R.  S.  2 
id.  794.)  But  neither  is  the  statute,  nor  were  the  common  law  rules  of  which 
it  is  declaratory,  applicable  to  any  examination  except  that  of  a  person  brought 
before  a  magistrate  on  a  charge  of  crime.  All  other  examinations  are  classified 
as  extra  judicial,  (Green.  Ev.  216,)  and  are  to  be  conducted  like  other  case?  of 
the  examination  of  witnesses. 


ALBANY,  DECEMBER,  1853.  43 j 


The  People  v.  Hendrickson. 


It  is  evident  that  in  deciding  the  case  of  Lewis,  above  cited,  the  mind  of  the 
presiding  judge  was  influenced  to  some  extent  by  the  supposition,  that  the 
facts  peculiar  to  it  gave  to  the  testimony  the  character  of  a  judicial  examina- 
tion, for  Baron  Gurney  lays  stress  upon  the  facts  that  the  deposition  was  made 
at  the  same  time  as  all  the  other  depositions  on  which  she  was  committed,  and 
on  the  same  day  on  which  she  was  committed.  In  both  these  resemblances  to 
a  judicial  examination,  the  case  of  Lewis  differs  from  that  now  before  us;  for 
Hendrickson  was  arrested  on  a  complaint  made  before  a  different  magistrate, 
and  on  a  subsequent  day.  It  is  unnecessary,  therefore,  to  express  an  opinion 
as  to  the  soundness  of  the  reasons  given  by  Baron  Gurney  for  bis  decision  in 
the  case  of  Lewis. 

The  examination  of  a  witness  before  a  coroner's  inquest  bears  even  less  re- 
semblance to  a  judicial  examination  than  that  taken  before  a  committing  ma- 
gistrate or  a  grand  jury.  A  coroner's  inquest  may  be  held  in  all  cases  of  sud- 
den death,  but  an  examination  before  a  committing  magistrate  or  a  grand  jury 
takes  place  on  complaint  made  that  a  crime  has  been  committed.  It  is  only 
where  a  person  is  charged  with  crime  and  is  examined  with  regard  to  the 
truth  of  such  charge,  that  his  examination  can  be  considered  judicial. 

In  the  case  of  the  State  agt.  Broughton,  (7  bedell's  Rep.  96,)  decided  in  North 
Carolina  in  1846,  where  the  grand  jury  were  investigating  an  offence  with  a 
view  to  discover  the  perpetrator,  and  the  person  who  was  subsequently  indicted 
was  examined  before  them  on  oath  and  charged  another  with  the  commissiou 
of  the  offence,  it  was  held  that  the  examination  might  be  given  in  evidence 
against  the  prisoner  on  the  trial  of  his  indictment.  RUFFIN,  Ch  J.,  said,  how- 
ever, that  if  the  evidence  given  by  the  prisoner  had  been  a  confession  of  his 
guilt,  and  the  grand  jury  had  found  a  presentment  on  it,  the  court  would  have 
held  that  it  could  not  be  given  in  evidence  against  him.  It  is  not  material  to 
the  decision  of  this  case  to  inquire  whether  the  chief  justice  was  right  or  not 
in  the  distinction  he  made  between  a  confession  and  a  statement  not  a  confes- 
sion, because  neither  in  that  case  nor  in  the  one  now  before  us  was  there  any 
confession.  Both  statements  tended  to  turn  attention  away  from  the  witness. 
I  am  inclined,  however,  to  think  the  chief  justice  erred  in  the  case  of  Broughton, 
in  the  reason  assigned  for  his  decision.  For  the  law  seems  to  be  that  the  rule 
as  to  confessions  applies  not  only  to  direct  confessions,  but  to  every  other  de- 
claration tending  to  implicate  the  prisoner  in  the  crime  charged,  even  though 
in  terms  it  is  an  accusation  of  another,  or  a  refusal  to  confess.  (Green.  Ev. 
§219,  note  2,  and  cases  there  cited.)  But  while  the  decision  in  the  case  of 
Broughton  is  in  accordance  with  the  ruling  in  the  case  before  us,  the  reason 
given  for  that  decision,  if  it  be  erroneous,  does  not  conflict  with  such  ruling. 

Independent  of  any  supposed  authority,  I  do  not  see  how,  upon  principle,  the 
evidence  of  a  witness  not  in  custody  and  not  charged  with  crime,  taken 
either  on  a  coroner's  inquest,  or  before  a  committing  magistrate  or  a  grand 
jury,  could  be  rejected.  It  ought  not  to  be  excluded  on  the  ground  that  it 
was  taken  on  oath.  That  reason  would  exclude  also  the  statements  of  wit- 
nesses on  the  trials  of  issues.  The  evidence  is  certainly  none  the  less  reli- 
able because  taken  under  the  solemnity  of  an  oath.  No  injustice  is  done  to 


422  DECISIONS  IN  CRIMINAL  CASE&. 

The  People  v.  Hendrickson. 

the  witness,  for  he  was  not  bound  to  criminate  himself,  or  to  answer  in  re- 
gard to  any  circumstance  tending  to  do  so.  If  it  is  a  good  ground  of  exclusion 
that  the  statement  was  made  as  a  witness  on  oath,  the  rule  of  law  that  pro-* 
tects  a  witness  from  criminating  himself  is  of  no  value,  and  may  at  once  be 
abrogated.  The  rule  was  adopted  upon  the  supposition  that  the  answer  might 
be  introduced  in  evidence  against  the  witness.  If  it  can  not  be,  the  witness 
has  no  longer  any  reason  for  claiming  his  privilege. 

Nor  can  the  exclusion  of  the  evidence  depend  on  the  question  whether  there 
was  any  suspicion  of  the  guilt  of  the  witness  lurking  in  the  breast  of  any 
person  at  the  time  the  testimony  was  taken.  That  would  be  the  most  dangerous 
of  all  tests,  as  well  because  of  the  readiness  with  which  proof  of  such  suspi- 
cion might  be  procured,  as  of  the  impossibility  of  refuting  it.  Besides,  the 
•witness  might  have  no  knowledge  of  the  existence  of  any  suspciion,  so  that 
his  mind  could  not  be  affected  or  his  testimony  influenced  by  it.  It  is  only 
when  he  is  charged  with  crime  and  examined  on  such  charge,  that  there  is 
good  reason  for  treating  him  as  a  party  to  the  proceeding.  The  common  law 
has  been  as  tender  of  the  rights  of  witnesses  as  of  parties. 

It  is  the  policy  ot  the  common  law  never  to  compel  a  person  to  criminate 
himself.  That  policy  secures  as  well  to  a  witness  as  to  a  party  the  privilege 
of  declining  to  answer.  The  former  is  supposed  to  know  his  rights — the  latter 
is  to  be  specially  instructed  in  regard  to  them  by  the  presiding  magistrate. 
But  if  either  fail  to  avail  himself  of  the  privilege,  his  answer  is  deemed  volun- 
tary, and  may  be  used  as  evidence. 

It  is  only  upon  a  judicial  examination,  viz.:  in  the  case  provided  for  by 
statute  where  the  prisoner  is  brought  before  a  magistrate  charged  with  crime, 
that  the  preliminaries  required  by  statnte  are  to  be  observed,  and  the  examina- 
tion taken  without  oath.  All  other  examinations  are  extra  judicial.  The 
'former  is  the  examination  of  a  party,  the  latter  of  a  witness.  In  all  cases,  as 
well  before  coroner's  inquests  as  on  the  trial  of  issues  in  court,  when  the  wit- 
ness is  not  under  arrest,  or  is  not  before  the  officer  on  a  charge  of  crime,  he 
stands  on  the  same  footing  as  other  witnesses.  He  may  refuse  to  answer  and 
his  answers  are  to  be  deemed  voluntary,  unless  he  is  compelled  to  answer  after 
having  declined  to  do  so;  in  the  latter  case  only  will  they  be  deemed  com- 
pulsory and  excluded.  Applying  these  rules  to  the  case  before  us,  Hendrick- 
son's  answers  before  the  coroners  inquest  were  voluntary,  and  were  properly 
received  as  evidence  against  him 

II.  The  second  ground  on  which  the  prisoner  asks  a  reversal  of  the  judg- 
ment is.  that  the  will  of  Lawrence  Van  Deusen,  the  father  of  the  deceased, 
was  improperly  admitted  in  evidence.  The  will  was  dated  1st  November, 
1851,  and  by  it  the  testator  devised  all  his  property  to  his  wife  for  life,  and 
after  her  death  to  his  three  children,  Lawrence  Van  Deusen,  Maria  Hendrick- 
son, (the  deceased,)  and  Susannah  Hungerford,  one  moiety  to  Lawrence  Van 
Deusen,  and  the  remaining  moiety  to  be  equally  divided  between1  Maria 
Hendrickson  and  Susannah  Hungerford.  By  the  will,  therefore,  the  deceased 
would  have  recieved  one  fourth  part  of  the  estate  after  the  death  of  her  mother. 
This  evidence  was  received  as  bearing  upon  the  question  of,  motive.  If  it 


ALBANY,  AUGUST,  1853. 


The  People  v.  Hendrickson. 


tended,  in  the  least,  to  show  that  the  prisoner  had  been  disappointed  in  the 
pecuniary  expectations  he  had  entertained  from  his  alliance  with  the  family, 
in  not  being  able  to  realize  them  till  after  the  death  of  his  wife's  mother,  and 
then  not  in  an  equal  proportion  with  the  brother;  or,  if  it  tended  to  show  how 
little  property  he  might  expect  from  his  wife,  if  she  lived — in  either  case 
whether  the  supposed  motives  was  resentment  or  avarice,  it  was  properly  re- 
ceived. It  was  competent  to  show  whether  the  prisoner  would  gain  or  lose  by 
the  death  of  the  deceased,  and  to  compare  the  small  amount  expected  to  be  realized 
at  a  distant  day  with  the  intermediate  burden  of  her  maintenance.  Taken  in 
connection  with  the  previous  testimony,  tending  to  show  a  want  of  affection  on 
the  part  of  the  prisoner  toward  his  wife,  this  evidence  was  clearly  admissible. 
Considerable  latitude  is  allowed  on  the  question  of  motive.  Just  in  proportion 
to  the  depravity  of  the  mind,  would  a  motive  be  trifling  and  insignificant, 
which  might  prompt  to  the  commission  of  a  great  crime.  We  can  never  say 
the  motive  was  adequate  to  the  offence;  for  human  minds  would  differ  in  their 
ideas  of  adequacy,  according  to  their  own  estimate  of  the  enormity  of  crime, 
and  a  virtuous  mind  would  find  no  mo  tive  sufficient  to  justify  the  felonious 
taking  of  human  life. 

I  think  the  evidence  of  the  will  was  properly  received.  It  was  the  province 
of  the  jury  to  determine  the  weight  to  which  it  was  entitled. 

My  conclusion  is,  that  there  was  no  error  committed  on  the  trial,  and  that 
the  judgment  of  the  supreme  court  should  be  affirmed. 

DENIO.  JOHNSON,  RUGOLES  AND  EDWARDS,  JJ.,  concurred. 

SELDETN,  J. ,  delivered  an  opinion  expressing  his  dissent  upon  both  points 
discussed  in  the  above  opinion.  ALLEN,  J.,  dissented  upon  the  first  ground  dis- 
cussed in  the  above  opinion,  and  GARDINER,  Ch.  J.,  read  an  opinion  concurring 
upon  the  first  point  and  dissenting  upon  the  second.  Upon  each  separate  point 
therefore  the  judgment  was  affirmed  by  a  vote  of  6  to  2. 


424 


DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT  ,  Onondaga  General  Term,  October,  1853. 
Pratt,  Gridley,  W.  F.  Jillen  and  Hubbard,  Justices. 

THE  PEOPLE  vs.  ABIGAIL  STOCKHAM,  impleaded,  &c. 

A  bill  of  exceptions  lies  only  to  correct  an  erroneous  decision  upon  some  point 
of  law  made  on  the  trial,  or  some  erroneous  opinion  delivered  to  the  jury  in 
the  charge  of  the  court,  to  which  an  exception  was  taken  at  the  time. 

In  a  case  where  the  sufficiency  of  an  indictment  is  not  involved  in  some  decision 
made,  or  opinion  advanced,  at  the  trial,  the  only  mode  of  reaching  a  defect  .'n 
the  indictment  is  on  a  motion  in  arrest  of  judgment,  or  by  a  writ  of  errca 
brought  on  the  record  of  judgment  itself. 

If  an  indictment  for  a  statutory  offence  alleges  all  the  facts  which  the  statute 
requires  to  constitute  the  offence,  this,  as  a  general  rule,  is  sufficient. 

Where  an  indictment  charged  that  the  accused  administered  to  one  A.  D.,  a 
pregnant  woman,  a  certain  medicine  and  drug,  and  used  and  employed  upon 
her  body  a  certain  instrument,  with  intent  to  procure  the  miscarriage  of  the 
said  A.  D.,  contra  formam  statuti,  fyc.,  Held  that  the  facts  charged  were  suf- 
ficient to  constitute  a  misdemeanor,  under  the  act  of  May  13,  1845  to  prevent 
the  procurement  of  abortion. 

The  decision  in  The  People  v.  Lohman,  (2  Barb.  S.  C.  Rep.  220,)  upon  this 
point  approved  and  adopted. 

It  is  a  matter  of  discretion  with  the  court  to  allow  the  district  attorney  to  try 
prisoners  who  are  jointly  indicted,  for  a  mindemeanor  jointly  or  separately, 
as  it  seems  best  to  consist  with  the  advancement  of  justice;  and  the  court 
has  no  power  to  correct  any  error  in  the  exercise  of  that  discretion  upon  a  bill 
of  exceptions. 

That  discretion  may  be  exercised  by  an  order  made  on  the  motion  of  the  dis- 
trict attorney,  as  well  as  on  that  of  the  prisoner's  counsel. 

Motion  for  a  new  trial  upon  a  bill  of  exceptions.  An  in- 
dictment was  found  at  the  court  of  Oyer  and  Terminer  held  in 
and  for  the  county  of  Onondaga,  in  June,  1852,  against  Hiram 
Adams,  Elijah  Thomas,  Washington  Stockham  and  Abigail 
Stockham.  It  alleged  that  the  defendants  on  the  first  day  of 
March,  1852,  "  did  administer  to  one  Almira  Davenport,  a 
pregnant  woman,  and  did  prescribe  for  the  said  Almira  Daven- 
port, being  then  and  there  a  pregnant  woman,  and  did  advise 
and  procure  the  said  Almira  Davenport,  a  pregnant  woman, 
then  and  there  to  take  a  certain  medicine,  and  drug,  and  sub- 
stance, of  a  name  to  the  jury  unknown,  and  then  and  there,  use 
and  employ  upon  the  body  of  the  said  Almira  Davenport,  a  cer- 


OXONDAGA,  OCTOBER,   1853.  425 

The  People  v.  Stockham. 

tain  instrument,  of  a  name  and  description  to  the  jury  unknown, 
with  intent  thereby,  then  and  there,  to  procure  the  miscarriage 
of  the  said  Almira  Davenport,  against  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace,"  &c. 
Elijah  Thomas,  one  of  the  persons  thus  indicted  died,  in  June, 
1852,  and  before  he  was  arraigned  thereon,  or  had  pleaded 
thereto.  Washington  Stockham,  Abigail  Stockham  and  Hiram 
Adams,  the  other  defendants  appeared  and  severally  put  in  the 
plea  of  not  guilty  thereto.  On  the  16th  day  of  June,  1853,  in 
said  court  of  Oyer  and  Terminer,  the  district  attorney  moved 
on  The  trial  of  Washington  Stockham  and  Abigail  Stockham 
his  wife,  and  not  of  said  Hiram  Adams,  who  was  present  in 
court.  Adams  did  not  require  a  separate  trial.  The  counsel 
for  Washington  Stockham  and  Abigail  Stockham  objected  to 
separate  trials  of  the  said  Washington  Stockham  and  Abigail 
Stockham,  and  claimed  that  the  indictment  was  a  joint  indict- 
ment, and  for  a  joint  offence,  and  that  the  district  attorney  had 
no  right  to  try  the  persons  indicted,  separately,  and  that  the 
statute  only  allowed  separate  trials  in  cases  of  misdemeanor, 
when  a  defendant  required  it,  and  then  only  in  the  discretion 
of  the  court;  and  the  counsel  for  said  Washington  Stockham 
and  Abigail  his  wife,  to  sustain  such  objection,  then  read  and 
filed  an  affidavit  alleging  that  the  husband  was  not  guilty  of 
the  offence  and  that  Adams  was  a  material  witness  for  himself 
and  his  wife. 

The  court  denied  the  motion,  and  decided  that  the  trial  of 
said  Washington  Stockham  and  Abigail  his  wife  only,  might  be 
had,  on  motion  of  the  district  attorney.  To  which  decision  the 
counsel  for  Stockham  and  wife  excepted.  The  counsel  for 
the  defendants  then  asked  that  Adams  might  be  first  tried,  so 
that  the  defendants,  Stockham  and  wife,  might,  upon  their 
trial,  have  the  benefit  of  his  evidence,  to  which  the  district 
attorney  objected,  and  the  court  denied  the  motion,  to  which 
the  defendant's  counsel  excepted  and  the  trial  proceeded. 
Almira  Davenport  was  sworn  on  the  part  of  the  people,  and 
gave  evidence  tending  to  show,  that  the  said  Abigail  Stock- 
ham  administered,  and  advised  the  administering  of  powders 

VOL.  I.  54 


426  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Stockham. 

and  medicines  to  her,  the  said  Almira  Davenport,  with  intent 
to  produce  the  miscarriage  of  a  child,  of  which  she  the 
said  Almira  was  pregnant.  The  said  Almira  Davenport  was 
the  only  witness  on  the  part  of  the  people,  and  after  the  district 
attorney  had  rested,  the  counsel  for  defendants  called  the  said 
Hiram  Adams  as  a  witness;  the  district  attorney  objected  tc 
him,  because  he  was  one  of  the  defendants  named  in  said  in- 
dictment, and  the  court  rejected  the  witness,  to  which  the 
counsel  for  the  defendants  excepted.  No  other  witness  was 
sworn  in  the  cause.  The  counsel  for  defendant  moved  that  the 
said  Washington  Stockham  be  discharged,  and  he  was  discharged, 
by  the  court,  on  the  ground  that  there  was  not  sufficient  evi- 
dence against  him,  of  the  commission  of  a  joint  offence  with 
Abigail  Stockham.  There  was  no  evidence  to  show  that  the 
said  Abigail  Stockham  used  instruments  or  other  means  to  pro- 
duce a  miscarriage,  except  as  above  stated.  The  jury  found  a 
verdict  of  guilty  against  Abigail  Stockham. 

B.  D.  JVbxon,  for  the  prisoner. 

R.  H.  Gardner,  (Dist  Att'y,)  for  the  People. 

By  the  Court,  GRIDLEY,  J.  The  prisoner  was  jointly  indicted 
with  her  husband  and  two  other  persons,  under  the  act  passed 
in  May,  1S45,  for  a  misdemeanor  in  administering  to  a  preg- 
nant woman  a  drug  or  medicine  with  the  intent  to  procure  the 
miscarriage  of  the  patient.  The  district  attorney  was  about 
moving  on  the  trial  of  Mrs.  Stockham  and  her  husband,  (Tho- 
mas, one  of  the  defendants,  having  died  after  the  indictment 
was  found,)  when  the  counsel  of  the  prisoner  applied  to  the 
court  to  have  her  tried  jointly  with  the  other  defendant,  Adams. 
In  support  of  this  motion  the  husband  of  Mrs.  Stockham  made 
an  affidavit  stating  that  he  was  not  guilty  of  the  offence  charged 
in  the  indictment,  and  that  Adams  was  a  material  witness  for 
himself  and  his  wife.  The  motion  wao  opposed  by  the  public 
prosecutor,  and  was  denied  by  the  court.  The  trial  proceeded 
and  the  jury  convicted  the  prisoner  and  acquitted  her  husband. 


ONONDAGA,  OCTOBER    1853.  407 

The  People  v.  Stockham. 

A  bill  of  exceptions  was  taken  to  the  ruling  of  the  court.  A 
new  trial  is  now  asked  for  on  two  grounds:  1st.  Because  the 
indictment  is  defective,  and  charges  no  offence.  2d.  Because 
the  court  should  have  compelled  the  district  attorney  to  try  the 
prisoner  jointly  with  the  defendant  Adams. 

I.  Upon  the  first  question  presented  upon  the  argument, 
we  are  met  in  the  outset  with  the  objection  that  there  is  no 
way  of  reaching  the  alleged  defect  upon  the  bill  of  exceptions. 
There  has  been  no  judgment  pronounced,  and  no  question  was 
raised  on  the  trial  respecting  the  sufficiency  of  the  indictment. 
There  is  no  decision  of  the  court  on  any  question  arising  upon 
the  indictment  to  which  an  exception  has  been  taken.  The 
point  has  been  argued  as  though  it  arose  on  a  writ  of  error 
brought  on  the  record,  after  judgment.  This  however  is  not 
the  fact,  and  a  bill  of  exceptions  only  lies  to  correct  an  errone- 
ous decision  upon  some  point  of  law  made  on  the  trial,  or  some 
erroneous  opinion  delivered  to  the  jury  in  the  charge  of  the 
court,  to  which  an  exception  was  taken  at  the  time.  In  a  case 
where  the  sufficiency  of  the  indictment  is  not  involved  in  some 
decision  made,  or  opinion  advanced  at  the  trial,  the  only  mode 
of  reaching  a  defect  in  the  indictment  is  on  a  motion  in  arrest 
of  judgment,  or  by  a  writ  of  error  brought  on  the  record  of 
judgment  itself.  Nevertheless  as  this  point  was  fully  argued 
by  the  counsel,  we  have  examined  it,  and  have  come  to  the 
conclusion  that  the  indictment  is  sufficient.  It  alleges  all  the 
facts  which  the  statute  requires,  to  constitute  the  offence  under 
the  act  of  1845.  This,  as  a  general  rule,  is  sufficient.  (People 
v.  Taylor,  3  Denio,  91).  The  indictment  also  alleges,  after 
enumerating  all  the  ingredients  of  the  offence,  that  it  was  com- 
mitted against  the  form  of  the  statute  in  that  case  made  .and 
provided.  It  is  expressly  decided  in  the  case  of  The  People  v. 
Lohman,  (2  Barbour,  220,)  that  the  facts  charged  in  the  indict- 
ment in  this  case,  are  enough  to  constitute  a  misdemeanor 
under  the  act.  The  opinion  contains  a  very  well  reasoned 
argument  on  the  very  point  involved  in  the  case  under  consid- 
eration; and  we  are  satisfied  with  the  conclusion  to  which  the 
court  arrived  and  adopt  it  in  the  present  case. 


428  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Stoctham. 

II.  Upon  the  second  ground  on  which  we  are  asked  to  grant 
a  new  trial,  there  is  a  similar  objection  to  the  argument,  viz* 
that  the  error  did  not  occur  in  any  decision  made  on  the  trial. 
It  occurred,  if  at  all,  on  the  decision  of  a  motion  made  before 
the  jury  were  empanneled,  and  before  the  trial  was  commenced. 
It  was  not  strictly  the  subject  of  an  exception.  It  was  a  mat- 
ter of  discretion  to  grant  the  motion  or  not.  Our  statute  reads 
as  follows:  "  Whenever  two  or  more  defendants  shall  be  jointly 
indicted  for  a  felony,  any  one  defendant  desiring  it  shall  be 
tried  separately.  In  other  cases  defendants  jointly  indicted 
shall  be  tried  separately  or  jointly  in  the  discretion  of  the 
court,"  If  the  defendants  have  not  a  right  to  be  tried  jointly, 
in  other  words,  if  it  be  a  matter  of  discretion  with  the  court  to 
allow  the  district  attorney  to  try  the  prisoners  jointly  or  sepa- 
rately as  it  seems  best  to  consist  with  the  advancement  of  jus- 
tice, then  it  is  clear  that  no  bill  of  exceptions  lies  to  correct 
any  error  that  we  may  suppose  was  committed  by  the  court, 
in  the  exercise  of  that  discretion.  (See  People  v.  Barker,  3 
Hill,  159;  Rapelyea  v.  Prince,  4  Hill,  119.) 

In  the  first  volume  of  Baldwin's  Rep.  page  75,  81,  it  is  said 
by  the  court:  "  It  is  now  settled  that  separate  trials  are  a  mat- 
ter of  discretion  and  not  of  right.     If  in  the  opinion  of  the  dis- 
trict attorney  public  justice  requires  a  joint  trial,  the  court  will 
not  direct  separate  trials,  except  under  very  special  circum- 
stances.    As  a  general  rule,  the  prosecutor  has  a  right  to  select 
his  course,  and  the  court  will  not   undertake  to  control  him." 
We  have  already  shown  that  our  statute  expressly  reserves  the 
right  to  the  court  to  decide,  as  a  matter  of  discretion,  whether 
the  trial  of  an   indictment  for  misdemeanor  shall  be  joint  or 
separate.     That  discretion  may  be  exercised  by  an  order  made 
on  the  motion  of  the  district  attorney  as  well  as  on  that  of  the 
prisoner's  counsel.     The  district  attorney  may  have  been  fully 
prepared  to  try  the  prisoner  Stockham,  while  he  may  have  been 
unable  to  procure  witnesses  to  try  Adams.     If  compelled  to  try 
them  all  jointly,  Adams  would  escape.     If  he  should  postpone 
the  trial  of  all  the  defendants,  he  might  never  be  able  to  get 
the  attendance  of  his  witnesses  against  the  Stockhams  again. 


NEW  YORK,  DECEMBER,  1853.  429 

In  the  matter  of  Heilbonn. 

In  fact  if  the  defendants  are  numerous,  and  all  to  be  tried  jointly, 
unless  the  prisoners  ask  for  separate  trials,  it  may  happen  that 
all  can  never  be  tried  without  great  danger  that  some  will 
escape  for  the  reason  of  some  witnesses  who  could  not  be  pro- 
cvred.  In  fine,  the  court  in  its  discretion,  refused  to  order  a 
joint  trial.  We  have  not  the  means  of  reviewing  that  discre- 
tion, for  we  are  not  informed  of  the  objection  of  the  district 
attorney  to  the  motion,  That  discretion  was  conferred  by  the 
statute,  and  we  have  not  the  power  to  review  it,  except  in  very 
special  cases,  and  then  not  upon  a  bill  of  exceptions. 

New  trial  denied. 


SUPREME  COURT.     At  Chambers.     Before  Mitchell,  Justice 
New  York,  December,  28,  1853. 

In  the  matter  of  ALEX.  HEILBONN,  claimed  by  the  British  go- 
vernment under  the  treaty  of  1842,  as  a  fugitive  from  justice, 
on  a  charge  of  forgery. 

The  power  to  issue  warrants  for  the  purpose  of  apprehending  fugitives  from 
justice,  under  the  tenth  article  of  the  treaty  between  the  United  States  and 
Great  Britain,  concluded  on  the  ninth  day  of  August  1842,  and  under  other 
treaties  between  this  government  and  foreign  governments  is  conferred  by  the 
act  of  congress  of  August  12,  1848,  ch.  167,  as  well  upon  the  judges  of  the 
several  state  courts,  as  upon  the  justices  of  the  Supreme  Court  and  the  several 
District  Courts  of  the  United  States  and  the  commissioners  appointed  by  the 
courts  of  the  United  States. 

Such  warrant  can  only  be  issued  upon  complaint  made  under  oath  or  affirma- 
tion, charging  some  person  with  having  committed  one  of  the  crimes 
enumerated  and  provided  for  in  the  treaty,  and  if  the  complaint  be  insuf- 
ficient there  is  no  jurisdiction  to  issue  the  warrant. 

Where  the  charge  of  the  crime  is  made  in  the  complaint  in  general  terms,  and 
the  complaint  also  contains  all  the  facts  on  which  the  charge  is  made,  and 

•  from  such  facts  it  clearly  appears  that  no  such  crime  has  been  committed, 
but  some  other  offence  not  provided  for  in  the  treaty,  the  complaint  itself 
disproves  the  general  charge  and  takes  away  the  foundation  for  the  warrant. 

Where  a  person  had  been  arrested  as  a  fugitive  from  justice  under  a  warrant 
issued  by  a  commissioner  appointed  by  a  court  of  the  United  States  and  was 


430'  DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Heilbonn. 


afterwards  brought  before  a  justice  of  the  Supreme  Court  of  this  state  o( 
habeas  corpus  for  the  purpose  of  inquiring  into  the  cause  of  his  detention 
with  a  view  to  obtaining  his  discharge,  held  that  it  was  proper  for  the  jus- 
tice to  look  behind  the  warrant  for  the  purpose  of  ascertaining  whether  the 
complaint  made  was  sufficient  to  give  the  commissioner  jurisdiction. 

The  proper  mode  of  reviewing  a  decision  of  a  state  judge,  made  in  such  case, 
is  by  carrying  it  to  the  Supreme  Court  of  the  state,  and  from  thence  to  the 
Court  of  Appeals,  and  from  thence  to  the  Supreme  Court  of  the  United  l>  fates, 
if  I  he  decision  of  the  Court  of  Appeals  be  against  the  power  claimed  una?r  the 
United  States  law. 

Where  a  bill  was  drawn  by  the  Bank  of  Ireland  on  the  Bank  of  England,  on 
the2d  July  1853,  to  the  order  of  Mrs.  A.  Haliday,  for  £43,  7s.  6d.  sterling, 
and  after  several  intermediate  endorsements,  was  endorsed  to  Chas.  Macin- 
tosh A;  Co.,  to  order,  and  the  bill  came  1o  Macintosh  &  Co  by  letter,  which 
was  sureptitiously  taken  possession  of  by  Alex.  Heilbonn,  the  prisoner,  a 
clerk  for  Macintosh  &  Co..  who  wrote  the  following  endorsement  on  the 
bill. — "  Received  for  Chas.  Macintosh  &  Co  ,  Alex.  Heilbonn,  No.  9  Vine 
Street,  Regent  Street  No.  73,  Aldermanbury,"  on  which  the  bill  was  paid  to 
the  prisoner.  AeW,  that  such  endorsement  did  not  amount  to  the  crime  of 
forgery,  though  it  appeared  that  Heilbonn  had  no  authority  to  endorse  bills 
of  exchange  or  to  receive  the  amount  thereof,  and  that  the  words  ;'  Cnas. 
Macintosh  &  Co."  were  an  imitation  of  the  hand  writing  of  a  member  of  the 
firm,  the  rest  of  the  endorsement  being  in  the  undisguised  handwriting  of  said 
Heilbonn.  And  held  that  the  offence  of  the  prisoner  belonged  to  a  difk-rent 
class  of  crimes  and  was  not  one  of  those  provided  for  in  the  treaty  between 
this  country  nnd  Great  Britain. 

This  was  an  application  on  habeas  corpus,  for  the  discharge 
of  Alex.  Heilbonn  from  arrest,  under  a  warrant  issued  against 
him  as  a  fugitive  from  justice,  by  U.  S.  Commissioner  Nelson, 
under  the  treaty  between  the  government  of  the  United  States 
and  Great  Britain,  on  a  charge  of  forgery. 

The  facts  of  the  case  are  stated  in  the  opinion  of  the  judge. 

Mr.  Busteed,  for  the  prisoner,  made  the  following  points: 

1.  That   the    extradition   treaty   between    this  country  and 
Great  Britain  executes  itself,  and  that  the  act  of  congress  of 
3848  was  passed  only  in  aid  of  such  treaties  as  do  not,  ex  vi 
termini,  execute  themselves,  or  provide  for  their  own  execution. 

2.  That  the  act  of  congress  of  1848,  providing  a  less  mea-* 
sure,  and   establishing    a   different  rule  of  evidence  from  that 
provided  for  by  the  treaty  and  the  constitution,  is  void  and  un- 
constitutional. 


NEW  YORK,  DECEMBER,   1853. 


In  the  matter  of  Heilbonn. 


3.  That  the  prisoner  having  been  found  within  the  territorial 
limits  of  the  state  of  New  York,  only  such  evidence  as  by  the 
laws  of  this  state  would  be  admissible  before  a  state  magis- 
trate, possessing  criminal  jurisdiction,  can  be  admitted  on  the 
hearing  before  the  commissioner;  and  that  it  is  the  statutory 
and  common  law  right  of  the  prisoner  to  be  confronted  by  his 
accuser    and   the  witnesses  against  him,  so  as  to  have  them 
cross-examined  on  his  behalf. 

4.  That,  there    is  no  legal  evidence  that  Muggeridge,  (the 
London  alderman,)  is  a  justice  of  the  peace  or  other  magistrate 
—  and  no  evidence  as  to  what  crimes  the  jurisdiction  of  justi- 
ces of  the  peace  for  the  borough  of  London  extends. 

5.  That  there  is  no  evidence  or  attestation  that  the  papers 
offered    in    proof  of  the  criminality  of  the  accused    are    true 
copies  of  the    original    depositions   upon  which  the  original 
warrant  was  issued. 

6.  That  the  "  complaint  under  oath,"  required  by  the  tenth 
article  of  the  treaty  and  the  first  section  of  the  act  of  congress 
of  1848,  is  necessary  to  initiate  jurisdiction  in  the  officer  issu- 
ing the  warrant  here;  and  that  no  complaint  was  made  in  this 
case. 

7.  That  the  facts  alleged  against  the  prisoner  do  not,  if 
proven,  constitute  the  crime  of  forgery. 

Chs.  O'Conor,  (U.  S.  Dist.  Att'y,)  for  the  government. 

MITCHELL,  J.,  delivered  the  following  opinion: 
The  prisoner  is  brought  up  on  a  habeas  corpus  issued  by  Mr. 
Nelson  as  commissioner,  appointed  by  the  United  States  circuit 
court  for  this  district,  under  the  act  of  congress  for  the  extradi- 
tion of  fugitives  from  other  countries,  pursuant  to  treaties  with 
those  countries,  and  issued  also  to  the  United  States  marshal 
for  this  district.  Those  officers  return,  that  the  prisoner  is  in 
the  custody  of  the  marshal  on  a  warrant  issued  by  the  commis- 
sioner, charging  the  prisoner  with  having  committed  in  Eng- 
land the  crime  of  forgery,  upon  the  back  of  a  bill  of  exchange; 
the  warrant  orders  his  arrest,  and  that  he  be  brought  befor«  the 
commissioner  that  the  evidence  of  his  criminality  might  be 


432 


DECISIONS  ll\   CRIMINAL  CASES. 


In  the  matter  of  Heilbonn. 


heard  and  considered.  The  prisoner  was  arrested  on  the  22d 
of  November,  and  on  the  30th  he  applied  to  the  commissioner 
that  the  examination  should  take  place;  the  matter  was 
adjourned  to  the  3d  of  December,  and  then  he  insisted  by  his 
counsel  that  the  examination  should  no  longer  be  delayed.  On 
that  occasion  it  was  admitted  by  the  counsel  for  the  prosecution 
that  he  would  have  no  further  evidence  than  that  on  which  the 
warrant  issued,  except  the  production  of  the  document  alleged 
to  be  forged.  An  adjournment  was  allowed,  notwithstanding 
the  objection  of  the  prisoner;  and  afterwards  this  writ  was 
taken  out  and  returned.  On  the  evidence  taken  on  the  return, 
it  appears  that  the  only  proof  on  which  the  warrant  issued  and 
on  which  the  further  commitment  of  the  prisoner  was  claimed, 
consisted  of  copies  of  three  depositions  taken  in  England,  viz.. 
of  George  Leigh,  Wm.  Brockdon  and  George  Bryant;  copies  of 
which  were  produced.  Leigh  states  all  the  facts  of  the  alleged 
forgery,  Brockdon  and  Bryant  use  language  which,  standing 
alone,  would  impute  the  crime  of  forgery  to  the  prisoner; 
Brockdon  saying  that  the  endorsement  "  Chas.  Macintosh  & 
Co."  appearing  on  the  bill,  is  a  forgery,  not  written  by  him  or 
either  of  his  partners  nor  authorized  by  them,  and  he  believed 
it  to  be  the  handwriting  of  the  prisoner.  But  the  examination 
of  the  two  last  persons  was  taken  after  that  of  Leigh,  and  each 
of  them  refers  to  the  preceding  examination  of  Leigh  as  con- 
taining a  copy  of  the  bill  of  exchange,  and  Bryant  says  also 
a  copy  of  the  endorsement  thereon.  The  facts  contained  in 
that  examination  as  to  the  contents  of  the  bill  of  exchange  and 
of  its  endorsement  must  prevail  over  those  general  affidavits, 
especially  as  Leigh's  examination  gives  a  verbatim  copy  of  the 
bill  and  its  endorsement.  Leigh  shows  that  the  bill  was  drawn 
on  the  2d  July,  1853,  by  the  bank  of  Ireland  on  the  bank  of 
England,  in  London,  to  the  order  of  Mrs.  A.  Haliday,  for  £43 
7s.  6d  sterling,  that  it  was  endorsed  by  Mrs.  Haliday,  without 
restrictio  is  and  not  to  order  —  then  endorsed  by  Bukhard  & 
Lohne  to  A.  &  L.  Camphausen,  by  the  last  to  L.  Kneljer,  and 
by  him  to  Chas.  Macintosh  &  Co.,  to  order.  Then  follows  this 
endorsement,  in  which  the  alleged  forgery  consists: 


NEW  i'ORK.  DECEMBER,  1853.  433 

In  the  matter  of  Heilbonn. 

Received  for  Chas.  Macintosh  &  Co.,  Alex.  Heilbonn,  No.  9 
Vine  street,  Regent  street,  No.  73  Alderraanbury. 

Leigh  says  that  the  endorsement,  "  Chas.  Macintosh  &  Co.," 
is  an  imitation  of  the  handwriting  of  Mr.  Hugh  Birley,  a  part- 
ner in  the  firm,  but  that  it  is  not  his  handwriting,  or  that  of 
any  member  of  the  firm;  and  that  the  words  "received  for" 
and  "Alex  Heilbonn,"  are  in  the  undisguised  handwriting  of 
the  said  Alex.  Heilbonn.  He  also  says  that  the  bill  of  ex- 
change came  to  Macintosh  &  Co.,  by  letter,  and  that  it  and 
the  letter  "  were  surreptitiously  taken  possession  of  by  the  pri- 
soner, and  that  the  prisoner  had  no  authority  to  write  such  an 
endorsement.  That  after  the  prisoner  fled  from  England  Leigh 
opened  the  desk  he  had  used  and  there  found  a  memorandum 
in  Heilbonn's  handwriting,  headed  "  accounts  not  acounted 
for,"  and  among  the  items  in  that  account  this  bill  of  exchange 
was  entered  as  for  £42,  7s.  6d.  He  also  states  that  Heilbonn 
had  been  a  clerk  of  Macintosh  &  Co.,  for  two  years,  and  that 
his  duty  was  to  collect  outstanding  book  debts  only,  and  he 
had  no  authority  to  endorse  bills  of  exchange,  or  to  receive  the 
amounts  thereof;  and  all  such  securities  were  paid  to  the  bank- 
ers of  the  firm.  The  question  now  presented  is  whether  these 
facts,  if  admitted  to  be  true,  show  that  the  prisoner  committed 
forgery.  Two  cases  precisely  similar  in  principle  have  been 
twice  decided  in  England,  and  in  each  it  was  held  that  the 
offence  was  not  forgery.  In  Rex  v.  Arscott,  (6  Carr.  Sf  Payne, 
408,)  the  prisoner  had  endorsed  on  a  bill  of  exchange,  payable 
to  the  order  of  R.  Aickman,  these  words:  —  "  Received  for  R. 
Aickman;  G.  Arscott."  On  the  trial  the  court  held  this  was 
not  forgery.  Littledale,  J.,  said — "  I  take  it  that  to  forge  a 
receipt  for  money  is  writing  the  name  of  the  person  for  whom 
it  is  received.  But  in  this  case  the  acts  done  by  the  prisoner 
were  receiving  for  another  person  and  signing  his  own  name. 
Under  these  circumstances  the  prisoner  must  be  acquitted  upon 
the  indictment."  Vaughan,  J.,  said:  —  "I  am  of  the  same 
opinion  and  I  think  it  is  much  belter  that  the  most  guilty 
offender  should  escape  than  that  the  law  should  be  strained  to 
meet  any  particular  case.  In  Regina  v.  White,  (2  Carr.  and 

VOL.  I.  55 


434  DECISIONS  IN  CRIMINAL  CASES. 


In  tbe  matter  of  Heilbonn. 


Kirwin,  404,)  the  prisoner  White  wrote  on  a  bill  of  exchange 
to  the  order  of  T.  Tomlinson,  this  endorsement  —  per  procura- 
tion Thomas  Tomlinson,  "  Emanuel  White."  Pattison,  J.,  ap- 
parently to  raise  the  question  of  law,  told  the  jury  that  if  they 
were  of  opinion  that  the  prisoner,  at  the  time  when  he  signed 
the  endorsement,  had  willfully  misrepresented  that  he  came 
from  Tomlinson,  with  intent  to  defraud  him  or  the  bankers,  and 
had  no  authority  from  Tomlinson,  they  ought  to  find  him  guilty. 
But  he  reserved  the  question  for  the  fifteen  judges.  It  was 
argued  fully  before  them,  and  they  "  held  the  conviction  wrong; 
and  that  endorsing  a  bill  of  exchange  under  a  false  assumption 
of  authority  to  endorse  as  per  procuration,  is  not  forgery,  that 
being  no  false  making."  It  might  not  be  necessary  to  refer  to 
these  authorities,  for  it  is  the  essence  of  forgery  that  one  signs 

O        •/  O 

the  name  of  another  to  pass  it  off  as  the  signature,  or  counter- 
feit of  that  other.  This  can  not  be  when  the  party  openly,  and 
on  the  face  of  the  paper,  declares  that  he  signs  for  the  other, 
there  he  does  not  counterfeit  the  name  of  the  other,  nor  attempt 
to  pass  the  signature  as  the  signature  of  that  other.  The 
offence  belongs  to  an  entirely  different  class  of  crimes,  and  is 
not  one  of  those  provided  for  in  the. treaty  between  this  country 
and  Great  Britain.  That  country  from  which  we  borrow  most 
of  our  views  of  law,  and  in  which  the  offence  was  committed, 
has  declared  it  not  to  be  a 'forgery.  There  is  no  dispute  about 
the  facts,  and  with  these  two  express  decisions  before  us,  con- 
curring with  the  clear  meaning  of  :the  term  forgery,  there 
would  appear  to  be  no  reasonable  doubt  about  the  law  —  from 
the  facts  disclosed  in  these  depositions  and  which  constitute  the 
crime  with  which  the  person  is  charged,  he  can  not,  with  any 
propriety,  be  said  to  be  charged  in  these  depositions  with  the 
crime  of  forgery.  It  is  unnecessary  to  say  how  far  facts  must 
be  stated  in  the  "  complaint  made  under  oath,"  required  by  our 
act  of  congress,  nor  even  to  say  whether  any  facts  need  be 
stated  —  but  if  the  charge  of  a  crime  is  made  in  general  terms, 
and  the  complaint  also  contains  all  the  facts  on  which  that 
charge  is  made,  and 'on  the  admitted  facts  it  clearly  appears 
that  no  such  crime  has  been  committed,  the  complaint  then 


NEW  YORK,  DECEMBER,   1853.  435 


In  the  .matter  of  Heilbonn, 


disproves  the  general  charge,  and  takes  away  the  foundation 
for  the  warrant.  The  oath  of  an  individual,  swearing  in  gene- 
ral terms  that  a  particular  crime  was  committed,  can  never  be 
received  as  a  foundation  for  any  legal  proceeding,  when  the 
particular  facts  which  he  states  disprove  the  charge  —  it  is  not 
for  him,  but  for  the  courts  to  decide  what  is  the  character  of  the 
offence,  when  the  facts  are  established.  Otherwise,  one  might  be 
arrested  on  a  charge  for  forgery,  when  the  complaint  shows  the 
offence  committed  was  a  literary  forgery,  or  the  use  of  the  name 
ol  a  commander  in  a  military  order  by  an  officer  engaged  in  a 
civil  war  on  the  side  in  opposition  to  such  commander.  In  this 
case,  too,  the  prisoner  had  general  authority  to  collect  book 
debts  of  the  firm,  that  gave  him  power  to  sign  the  name  of  the 
firm  1o  receipts  for  those  debts;  and  as  the  limitation  of  his 
authority  would  not  be  known  to  the  public,  and  he  was 
engaged,  so  far  as  the  public  could  judge,  in  collecting  the 
prosecutor's  debts  generally,  third  persons  would  be  protected 
in  their  payments  to  him.  He,  too,  might  even  have  supposed 
that  he  had  power  to  collect  this  debt,  and  receipt  for  it,  if  the 
charge  of  surreptitiously  obtaining  the  bill  and  letter  be  disre- 
garded, and  it  ought,  perhaps,  to  be  disregarded,  as  Leigh 
states  no  means  of  knowledge  which  he  had  of  the  prisoner 
committing  that  wrong,  and  leaves  it  in  doubt  whether  the  pri- 
soner was  ever  expressly  restricted  from  receipting  for  bills,  or 
merely  had  a  special  authority  to  collect  book  debts,  from 
which  Leigh  inferred  that  he  was  restricted  from  the  other 
power.  It  is  at  least  extremely  doubtful  whether  forgery  can 
be  committed  by  an  endorsement  not  at  all  essential  to  the 
negotiability  of  a  bill;  and  it  has  been  held  in  our  Superior 
Court  in  a  learned  opinion,  that  a  draft  once  endorsed  without 
restriction  could  not  afterward  be  so  undone,  in  order  to  make 
the  endorsement  of  the  last  endorser  necessary.  It  is  a  rule  in 
relation  to  all  magistrates  acting  under  a  special  and  limited 
power,  that  they  have  no  jurisdiction  unless  they  strictly  com- 
ply with  the  power  conferred.  The  power  to  apprehend  fugi- 
tives from  justice  in  these  cases  is  conferred  by  the  act  of 
congress  of  August  12,  1848,  ch  167.  It  gives  the  power 


436  DECISIONS  IN  CRIMINAL  CASES. 

In  the  matter  of  Heilbonn. 

to  issue  the  warrant  to  arrest  to  any  of  the  justices  of  the 
Supreme  Court  or  judges  of  the  several  District  courts  of  the 
United  States,  and  commissioners  appointed  as  the  present 
commissioners  have  been  appointed,  and  also  to  the  judges  of 
the  several  state  courts,  but  it  is  given  only  "  upon  complaint," 
made  under  oath  or  affirmation,  charging  any  person  with  hav- 
ing "  committed  any  of  the  crimes  enumerated  or  provided  for 
by  any  such  treaty  or  convention."  This  shows  that  without  a 
sufficient  complaint  on  oath,  there  is  no  jurisdiction  to  issue  the 
warrant. 

It  was  argued  that  on  habeas  corpus  the  judge  should  not  go 
beyond  the  warrant,  and  if  that  were  regular  he  should  remand 
the  prisoner.  The  answer  to  this  is  that  the  commissioner  has 
no  power  to  issue  the  warrant,  and  no  jurisdiction  under  the 
act  of  congress  until  a  complaint  on  oath  be  made  before  him. 
Those,  therefore,  who  oppose  the  discharge  of  the  prisoner  in 
order  to  show  that  there  is  a  valid  warrant,  are  bound  to  show 
that  it  was  issued  on  such  complaint  on  oath,  and  to  show  this 
they  must  produce  the  complaint.  If  when  produced  it  shows 
its  original  invalidity,  it  must  fall  to  the  ground  and  the  war- 
rant with  it.  In  the  case  of  Metzger,  before  the  present  presi- 
ding judge  of  the  Supreme  Court  in  this  district,  and  in  the  case 
of  Haynard  before  the  late  Justice  Sandford,  both  of  these 
distinguished  justices  went  behind  the  warrant  and  discharged 
the  prisoners.  In  the  case  of  Metzger,  which  was  under  the 
extraditional  treaty  with  France,  Mr.  Butler,  the  United  States 
district  attorney,  appeared  against  the  prisoner,  and  among  his 
printed  points,  while  he  said  that  "the  validity  "of  the  mandate 
was  the  only  question  then  to  be  decided,  he  added  that  in  or- 
der to  its  decision  it  was  proper  to  look  into  the  provisions  of 
the  treaty,  the  orders  of  Judge  Betts,  contained  in  the  return, 
and  the  evidence  presented  to  and  taken  before  him,  ( 1  Barb. 
S.  C.  R.  251,)  and  he  did  not  rely  on  the  mandate  of  the  presi- 
dent merely,  but  on  it  as  fully  warranted  by  "  the  facts  of  the 
case."  In  his  view,  it  was  essential  on  habeas  corpus  to  go 
behind  even  the  mandate  of  the  president  of  the  United  States, 
and  to  see  what  the  facts  of  the  case  were,  and  what  the  evi- 


NEW  YORK,  DECEMBER,  18-33.  137 


In  the  matter  of  Heilbonn. 


dence  was.  So  the  learned  judge  in  that  case  said,  "  It  was  his 
duty  to  inquire  into  the  cause  of  the  prisoner's  detention,  and 
that  not  merely  as  it  appeared  on  the  warrant  by  which  he  was 
held,  but  as  it  might  appear  from  any  fact  alleged  before  the 
judge,  to  show  that  the  imprisonment  or  detention  was  unlaw- 
ful." In  the  case  before  Judge  Sandford  he  looked  into  the 
affidavit  on  which  the  warrant  of  arrest  was  issued,  ( 1  Sand- 
ford's  Superior  Ct.  Rep.  705),  and  found  it  insufficient  and 
discharged  the  prisoner.  There,  too,  the  affidavit  charged  the 
prisoner  with  felony,  but  its  specifications  showed  that  the  real 
offence  was  obtaining  goods  by  false  pretences,  which,  as  rep- 
resented to  him,  was  only  a  misdemeanor  in  the  state  where  the 
offence  was  committed,  which  he  also  noticed,  (pp.  707,  708.) 
It  is  enough  here  to  say,  that  when  the  warrant  depends  for  its 
vitality  on  a  complaint  on  oath,  the  judge,  on  habeas  corpus, 
must  examine  the  complaint  on  oath,  to  see  if  it  does  clearly 
complain  of  such  an  offence  as  authorizes  the  issuing  of  the 
warrant.  It  was  also  strongly  pressed  that  on  habeas  corpus  a 
state  judge  could  not  interfere  when  the  arrest  purported  to  be 
under  the  laws  of  the  United  States  or  under  a  treaty.  The 
cases  of  Metzger  and  Haynard  were  both  under  the  laws  of  the 
United  States,  yet  the  state  judges  acted  then,  and  acted  re- 
luctantly, but  without  hesitation,  deeming  it  their  duty  first  to 
issue  the  writ,  and  after  they  had  issued  it,  not  to  stop  then  to 
make  a  mockery  of  justice  by  refusing  to  act  further,  but  to  go 
on  and  hear  the  prisoner's  case  and  decide  it.  In  Metzger's 
case,  the  prisoner  was  committed,  to  be  surrendered  after  exa- 
mination before  a  police  magistrate,  but  was  discharged  by  the 
state  judge;  he  was  again  arrested  and  examined  before  the 
United  States  district  judge,  and  a  commitment  ordered  by  him, 
and  also  by  the  mandate  of  the  president  of  the  United  States; 
but  again  he  was  brought  on  habeas  corpus  before  the  state 
judge,  and  by  him  (after  a  full  argument  by  the  learned  coun- 
sel, and  after  a  very  complete  examination  into  the  malter,) 
finally  discharged.  This  was  in  1847,  and  congress  in  the 
following  year  adopted  the  views  of  the  state  judge,  passed  a 
law  to  meet  the  difficulty  which  he  had  pointed  out;  and  in  that 


438  DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Heilbonn. 


act,  so  far  from  discountenancing  the  action  of  state  judges  in 
such  cases,  gave  to  them  the  like  power  to  arrest  as  was  given 
to  the  United  States  judges.  There  is  a  further  reason  why 
justice  requires  the  state  judges  to  act.  In  the  case  of  Metzger, 
and  in  a  moie  recent  case,  the  supreme  court  of  the  United 
States  refused  to  grant  a  writ  of  habeas  corpus  in  order  to  re- 
view the  decision  of  the  United  States  district  judge,  holding 
that  they  had  no  power  to  review  his  action  at  chambers  But 
if  the  decision  of  the  state  judge  is  erroneous,  it  can  be  carried 
to  the  Supreme  Court  of  the  state,  and  from  thence  to  the  Court 
of  Appeals,  and  from  thence  to  the  Supreme  Court  of  the  United 
States,  if  the  decision  of  the  court  of  appeals  be  against  the 
power  claimed  under  the  United  States  law.  This  is  the  only 
entirely  peaceable  mode  of  having  such  questions  finally  settled, 
if  they  are  still  matters  of  doubt;  and  the  state  courts  will  freely 
follow  (as  is  their  duty)  the  decisions  of  that  court  of  last  resort. 
The  revised  statutes  of  our  state  provide  that  all  proceedings 
commenced  under  the  article  authorizing  a  habeas  corpus  be- 
fore any  officer,  may  be  removed  by  certiorari  into  the  supreme 
court,  to  be  there  examined  and  corrected;  but  that  no  such 
certiorari  shall  be  issued  unless  the  same  be  allowed  by  a  justice 
of  the  Supreme  Court  or  a  circuit  judge,  nor  until  a  final  adjudi- 
cation shall  have  been  made  by  such  officer,  upon  the  claim  to 
be  discharged  or  bailed.  (2  R.  S.  573,  §71,  69.)  They  then 
provide  for  a  writ  of  error  to  the  court  for  the  Correction  of 
Errors,  by  the  prisoner  and  by  the  attorney  general  in  criminal 
cases,  or  the  party  aggrieved  in  civil  cases.  There  is  no  limit 
to  the  cases  in  which  the  appeal  may  be  made  by  certiorari 
from  the  decision  of  the  officer  issuing  the  habeas  corpus  to  the 
Supreme  Court,  and  if  (as  suggested)  the  United  States  attorney 
€an  not  carry  the  case  from  the  Supreme  Court  to  our  Court  of 
Appeals,  then  when  the  Supreme  Court  shall  decide  this  case,  a 
final  judgment  will  have  been  given  in  a  suit  in  the  highest 
court  of  law  in  this  state  in  which  a  decision  in  that  suit  could 
be  had,  and  there  its  decision  could  be  reexamined  and  revised 
or  affirmed  in  the  supreme  court  of  the  United  States,  upon  a 
writ  of  error,  if  the  decisions  of  the  state  court  were  against 


NEW  YORK,  DECEMBER,  1853.  439 


In  the  matter  of  Hcibonn. 


the  right  set  up  under  the  treaty,  or  a  statute  of  the  United 
States.  ( 1  Story's  Laws  U.  S.  p.  61,  Act  of  1789,  ch.  22,  sec. 
25.)  The  state  judge,  in  thus  acting,  does  not  in  any  way  in- 
terfere with  the  law  of  the  United  States.  On  the  contrary,  he 
conforms  to  it.  He  finds  an  act  of  congress  authorizing  an 
inhabitant  of  the  state  to  be  carried  away  to  a  foreign  country 
only  when  the  person  is  charged  on  a  complaint  on  oath  with 
some  of  the  offences  particularized  in  a  treaty;  that  inhabitant 
of  the  state  demands  the  protection  of  our  laws,  and  it  turns  out 
that  the  complaint  made  against  him  does  not  show  that  he  has 
committed  any  offence  for  which  he  can  be  removed  from  our 
territory;  thus,  those  who  hold  him  under  the  warrant  are 
acting  in  opposition  to  the  United  States  laws,  and  those  who 
discharge  ihe  prisoner  are  acting  in  support  of  those  laws. 
The  revised  statutes  have  been  in  operation  for  more  than 
twenty-three  years,  and  may  be  considered,  so  far  as  they  have 
remained  unaltered,  as  receiving  the  approbation  of  successive 
legislatures.  They  allow  the  writ  of  habeas  corpus,  and  re- 
quire the  judges  and  courts  to  issue  it  except  in  certain  exceptecl 
cases.  All  the  excepted  cases  in  favor  of  the  United  States  are 
those  where  process  has  been  issued  by  any  court  of  the  United 
States,  or  any  judge  thereof  in  cases  where  such  courts  or  judges 
have  exclusive  jurisdiction  under  the  laws  of  the  United  States, 
or  have  acquired  exclusive  jurisdiction  by  the  commencement 
of  suits  in  such  courts.  (2  R.  S.  503,  §24,  22.)  The  author- 
ities before  referred  to  show  that  this  "  section"  does  not  apply 
to  a  United  States  judge  acting  at  chambers,  or  as  a  commis- 
sioner, at  least  when  no  actual  suit  is  pending.  Besides,  the 
United  States  judges  have  no  exclusive  jurisdiction  to  arrest  in 
these  casesr— the  same  act  which  gives  them  power  to  arrest 
gives  it  also  to  the  state  judges — and  the  commissioner  whc 
orders  the  arrest  does  it  as  a  committing  magistrate,  and  is  not 
a  judge  of  the  United  States,  nor  of  the  United  States  courts. 
The  power  of  the  state  judge  to  discharge  persons  held  in  cus- 
tody unlawfully  by  United  States  officers  is  exercised  probably 
every  \reek  in  this  city,  where  persons  under  age  have  been 
enlisted  in  the  United  States  army  without  the  proper  consent 


DECISIONS  IN  CRIMINAL  CASES. 


In  the  matter  of  Heilbonn. 


In  the  matter  of  Ferguson,  (9  /.  JR.  289,)  the  majority  of  the 
court  seemed  to  hold  it  to  be  a  matter  of  discretion  to  grant  it 
or  not  when  the  court  was  sitting  in  term  time.  This  was  in 
1812.  Even  then  the  court  would  not  abandon  the  right  to 
issue  it.  In  Massachusetts,  the  power  of  discharging  the  sol- 
dier was  exercised  as  early  as  1815,  (11  Mass.  R.  63,  67,)  and 
it  was  enforced  in  our  courts  in  1847,  (7  Cow.  471,)  the  court 
saying,  "  Any  person  illegally  detained  has  a  right  to  be  dis- 
charged, and  it  is  the  duty  of  this  court  to  restore  him  to  his 
liberty."  Since  then  there  has  been  no  hesitation  to  exercise 
the  power.  If  it  were  unlawful,  or  even  inexpedient,  congress 
would  have  interfered  with  the  exercise  of  this  power,  as  it 
could  have  done  in  those  cases  by  making  the  enlistment  of 
minors  valid  unless  they  were  discharged  by  the  United  States 
courts.  Its  silence  is  an  acquiescence  in  the  power  of  the  state 
courts,  and  in  the  propriety  of  its  exercise,  even  in  a  case  where 
the  powers  of  the  executive  are  restrained,  but  restrained  only 
so  far  as  they  are  exercised  against  law.  The  revised  statutes 
also  preclude  from  the  benefit  of  the  writ  of  habeas  corpus 
persons  committed  or  detained  by  virtue  of  the  final  judgment 
or  decree  of  any  competent  tribunal  of  civil  or  criminal  juris- 
diction. (2  R.  S.  568,  24,  22.)  By  the  phraseology  used,  the 
judgment  or  decree  binds  the  party  in  such  case,  and  he  can 
not  go  behind  it  on  this  writ;  but  that  does  not  show  that  he 
may  not  go  behind  the  commitment  when  a  magistrate  has  a 
limited  authority  and  exceeds  it.  So  a  prisoner  may  not  be  at 
liberty  to  go  behind  an  indictment  except  for  special  purposes, 
but  an  indictment  has  an  effect  proprio  vigore,  and  is  not,  like 
the  warrant  in  this  case,  a  mere  statutory  remedy,  to  be  issued 
by  a  magistrate  only  on  certain  preliminaries  being  first  com- 
plied with,  and  dependent  on  them  fov  its  vitality.  The  prisoner 
being  unlawfully  confined,  imisi.  be  discharged,  and  an  order 
must  be  entered  accordingly. 

Prisons  discharged. 


NEW  YORK,  DECEMBER,  1853.  44  j 


SUPREME  COURT.     New  York  General  Term,  December,  1853 
Edmonds,  Edwards  and  Mitchell,  Justices. 

JOSEPH  MORRIS  vs  THE  PEOPLE.     HESS  WHEELER  vs.  THE 

SAME. 

The  first  section  of  the  act  passed  12  April  1853,  (Sess.  Laws  of  1853  page 
353,)  prescribing  and  authorizing  a  general  form  for  a  record  of  conviction  in 
case  of  vagrancy  is  not  unconstitutional. 

Whether  the  second  section  of  that  act  which  authorizes  a  discharge  before  the 
expiration  of  the  term,  or  an  order  jointly  made  by  the  committing  magis- 
trate and  one  of  the  governors  on  the  almshouse,  is  not  unconstitutional  and 
void  as  infringing  upon  the  pardoning  power  vested  in  the  governor  by  the 
constitution,  act  4  sec  5.  Quere? 

These  cases  came  before  the  court  on  writs  of  certiorari 
issued  for  the  purpose  of  reviewing  the  decisions  of  one  of  the 
justices  of  this  court  at  chambers.  The  legal  questions  pre- 
sented sufficiently  appear  in  the  opinion  of  the  court 

JV.  E.  Blunt,  (Dist.  Att'y,)  for  the  People. 
Jl.  D.  Russell,  for  plaintiff. 

By  the  Court,  EDMONDS,  P.  J.  These  cases  are  brought  be- 
fore us  on  certiorari  to  review  the  action  of  a  justice  at  cham- 
bers on  writs  of  habeas  corpus.  From  the  returns  to  those 
writs  it  appeared  that  the  prisoners  had  been  committed  to  the 
penitentiary  in  the  city  of  New  York  on  a  summary  conviction, 
as  vagrants/and  that  the  only  record  of  the  convictions  was  in 
the  following  form: 

City  and  County  of  New  York,  ss:  The  undersigned,  one  of 
the  police  justices  in  the  city  of  New  York,  hereby  certifies  that 
Joseph  Morris  was  this  clay  before  him  on  a  charge  of  being  a 
vagrant;  that  he,  the  justice,  made  diligent  examination  of  the 
matter,  and  upon  due  proof  found  him,  the  said  Joseph  Morris, 
to  be  a  vagrant  within  the  meaning  of  the  law  in  such  case 
provided;  and  he,  the  said  justice  did  so  adjudge.  Whereupon, 
he,  the  justice  aforesaid,  did,  by  warrant  under  his  hand  and 

VOL.  I.  56 


442 


DECISIONS  IN  CRIMINAL  CASES. 


Morris  v.  The  People. 


seal,  commit  the  said  Joseph  Morris,  so  adjudged  to  be  a  va- 
grant as  above  stated,  to  the  penitentiary  in  said  city,  for  the 
term  of  six  months.  In  witness  whereof,  I,  the  undersigned, 
police  justice  aforesaid,  have  hereunto  fixed  my  hand  and  seal, 
this  26th  clay  of  April,  in  the  year  1853. 

S.  H.  STUART,  Police  Justice. 

This  form  of  the  record  was  defended  under  an  act  which 
passed  the  legislature  on  the  12th  of  April,  1853,  and  was  in 
strict  conformity  with  that  statute.  That  act  was  probably  as 
extraordinary  as  any  to  which  party  and  inconsiderate  legisla- 
tion ever  gave  birth,  and  was  a  greater  invasion  of  the  rights 
of  personal  liberty  than  is  to  be  found  in  our  statute  book;  but 
yet,  unless  we  can  hold  it  to  be  in  violation  of  the  constitution, 
we  are  obliged  to  permit  it  to  be  enforced,  however  strongly 
we  may  feel  called  upon  to  condemn  its  provisions.  Summary 
convictions  are  coming  very  much  into  vogue  with  us.  In 
Great  Britain,  from  whose  system  of  jurisprudence  we  have 
borrowed  them,  they  have  extended  to  about  100,000  in  a  year, 
under  their  game,  excise  and  police  laws.  But  as  they  operate 
principally  upon  the  poorer  and  lower  classes,  they  are  permit- 
ted to  endure,  andto  become  a  principal  instrument  in  keeping 
those  classes  in  subjection.  The  enlightened  judges  of  that 
country,  who  have  for  ages  been  distinguished  for  their  firm 
defence  of  the  liberty  of  the  subject,  easily  discovered  how  pro- 
lific those  convictions  might  be  of  oppression  of  the  lower  classes, 
and  therefore  they  have,  for  a  long  time,  adhered  to  a  system 
of  rules  in  regard  to  them  which  were  calculated  to,  and  did, 
afford  protection  against  this  manifest  danger.  That  system 
required  that  a  record  of  the  conviction  should  be  made  out 
which  should  specify  every  act  and  fact  on  which  the  convic- 
tion was  based,  so  that,  by  removing  it  to  a  higher  court,  the 
party  accused  might  have  the  opportunity,  which  in  a  country 
of  laws,  ought  to  belong  to  every  one,  of  testing  the  question 
before  some  tribunal,  other  than  the  oppressor  himself,  whether 
he  was  lawfully  convicted  or  not.  This  required  necessarily, 
in  the  convicting  magistrate  considerable  labor,  skill  and 


NEW  YORK,  DECEMBER,  1S53.  4.13 


Morris  v.  The  People. 


knowledge  in  the  business  in  which  he  was  engaged,  and  was, 
to  be  sure,  sometimes  pretty  onerous  upon  the  magistrate.  Still 
the  courts  adhered  for  the  sake  of  personal  liberty,  with  great 
strictness,  to  their  rules.  But  as  the  British  parliament,  yield- 
ing to  the  same  impulse  which  has  influenced  our  legislature, 
increased  the  range  and  number  of  these  convictions,  they 
deemed  it  advisable  to  lighten  the  burden  on  the  magist  ate, 
and  they,  therefore,  in  some  cases,  adopted  a  general  form  of  a 
record,  as  our  act  of  1853  has  done.  But  aware  that  by  such 
a  form  they  deprive  the  party  accused  of  his  former  remedy  of 
review,  they  never  authorized  it  without  providing  another 
mode  of  review,  so  that  the  accused,  thus  deprived  of  his  re- 
medy by  certiorari  out  of  the  king's  bench,  might  still  have  it 
by  an  appeal, to  the  Quarter  Sessions;  and  thus,  while  they 
relieved  the  magistrate  from  the  labor  and  the  necessity  for 
knowledge  formerly  demanded,  they  did  not  achieve  that  wo.k 
at  the  expense  of  the  liberty  of  the  subject,  or  make  the  ma- 
gistrate the  final  judge  of  the  correctness  of  his  own  action 
where  personal  freedom  was  involved.  In  this  state  there  was 
no  general  form  of  a  recoid  authorized  until  this  recent  act, 
and  there  was  no  mode  by  which  the  accused  could  havp  his 
conviction  reviewed  but  in  this  court,  to  which  the  record  could 
be  removed  and  the  action  of  the  committing  magistrate  be 
scrutinized.  During  the  time  that  I  have  been  on  the  bench,  I 
have  had  occasion  to  discharge  hundreds  of  persons  from  the 
penitentiary,  because  of  erroneous  records  of  convictions  So 
numerous  were  those  applications  becoming  that  I  took  pains  i 
in  a  carefully  considered  opinion  to  collate  all  the  law  on  the 
subject,  and  spread  it  out  so  plainly  that  the  police  magistrates 
could  not  mistake  it.  This  was  done  in  the  case  of  The  People 
v.  Eliza  Phillips,  (a)  The  views  then  put  forth  have  lately 
been  recognized  in  the  Court  of  Appeals,  in  Morewood  v.  Hollu- 
ter.  (6)  This  did  not  reach  the  evil,  for  the  magistrate?  dis- 
regarded  the  rule,  sometimes  finding  it  too  much  trouble  and 
sometimes  erring  on  purpose  to  give  room  for  the.  operation  of 
a  habeas  corpus.  I  accordingly,  in  January,  1849,  de*  >«K  if 

(a)  Reported  at  page  95.     (6)  2  Selden  R.  309. 


444 


DECISIONS  IN  CRIMINAL  CASES. 


Morris  t>.  The  People. 


my  duty  to  call  the  attention  of  the  grand  jury  to  the  subject, 
and  they  made  a  presentment,  from  which  it  appeared  that  of 
511  records  of  conviction  only  three  were  valid,  and  that  of 
746  vagrants  in  the  penitentiary  743  were  unlawfully  impri- 
soned, and  were  entitled  to  be  forthwith  discharged.  This  was 
a  state  of  things  sufficiently  alarming  to  awaken  attention. 
Accordingly,  at  the  request  of  the  board  of  supervisors,  proper 
forms  were  provided  for  the  use  of  the  magistrates,  and  they 
were  for  a  while  adhered  to.  They  were,  however  still  trouble- 
some, for  they  still  demanded  labor,  knowledge  and  skill,  until 
the  statute  in"  question  interposed,  rendering  them  all  unneces- 
sary. Now,  under  that  statute,  there  is  no  mode  in  which  the 
decision  of  a  magistrate,  in  a  case  of  alleged  vagrancy,  can  be 
reviewed.  The  only  remedy  provided  is,  that  its  second  section 
confers  on  the  committing  magistrate  and  one  of  the  governors 
of  the  almshouse  the  power  to  discharge  the  convict  before  the 
expiration  of  his  term,  but  no  where  provides  for  a  review  of 
the  action  of  the  magistrate  in  the  conviction  itself. 

It  may  well  be  questioned  whether  this  second  section  of  the 
statute  is  not  void,  because  of  this  transfer  of  the  pardoning 
power  from  the  governor  of  the  state  to  one  of  the  governors 
of  the  almshouse,  but  that  question  is  not  now  before  us.  The 
only  question  here  is  whether  the  first  section  of  the  statute, 
depriving,  as  it  may,  the  accused  party  of  all  review  of  a  judg- 
ment by  which  any  one  of  us  may,  without  a  trial  by  jury,  be 
imprisoned  for  six  months,  is  in  violation  of  the  constitution. 

The  only  provisions  of  that  instrument  at  all  bearing  on  the 
subject  is  section  2  of  article  1,  which  enacts  that  "  the  trial 
by  jury  in  all  cases  in  which  it  has  been  heretofore  used  shall 
remain  inviolate  forever."  But  that  does  not  affect  the  question 
before  us,  because  that  relates  to  the  conviction,  and  this  statute 
only  to  the  review  of  it;  because  a  jury  trial  never  has  been 
used  in  cases  of  summary  convictions.  The  statute,  therefore, 
stands  unaffected  by  the  constitution,  but  it  is  none  the  less  to 
Be  deprecated,  for  it  already  acts  upon  more  than  2,000  of  our 
people  every  year,  and  the  number  is  corstantly  increasing,  and 
it  may  be  made  to  act  upon  every  one  of  us,  male  or  female, 


JEFFERSON,  DECEMBER,   1833.  445 

The  People  v.  Allen. 

young  or  old,  rich  or  poor,  high  or  low.  The  remedy,  however, 
is  riot  in  this  court,  but  in  the  legislature.  Our  duty  is  dis- 
charged when  we  hold,  as  we  must,  that  the  law  is  not  uncon. 
stitutional,  and  affirm  the  judgment  below. 

Judgment  affirmed. 


JEFFERSON  OYER  AND  TREMINER.     December,  1853.     Before  W 
F.  Mien  and  the  Justices  of  the  Sessions. 

THE  PEOPLE  vs.  JOHN  H.  ALLEN. 

On  tne  trial  of  an  indictment  charging  the  defendant  with  having  uttered  and 
published  as  true,  a  promissory  note  made  by  the  defendant,  on  which  the 
names  of  certain  individuals  appearing  as  endorsers  were  alleged  to  have 
been  forged,  it  is  a  good  defence,  under  the  plea  of  autrefois  acquit,  that  the 
defendant  had  before  been  indicted  and  tried  for  the  offence  of  forging  and 
counterfeiting  the  same  endorsements  and  on  such  previous  trial  had  been  ac- 
quitted by  the  verdict  of  a  jury  upon  the  merits,  the  only  controverted 
question  on  both  trials  being  whether  such  endorsements  were  genuine. 

The  prisoner  was  indicted  for  uttering  and  publishing  as  true, 
in  the  county  of  Jefferson,  a  note  made  by  himself,  on  which 
the  names  of  certain  individuals  were  alleged  to  have  been 
forged  as  endorsers,  knowing  such  endorsements  to  be  false, 
forged  and  counterfeit. 

The  defendant  interposed  the  plea  of  autrefois  acquit,  and  on 
the  trial  it  appeared  that  he  had  before  been  kidicted  and  tried 
in  the  county  of  Lewis  for  the  offence  of  forging  and  counter- 
feiting the  same  endorsements,  and  acquitted  by  the  verdict  of 
a  jury  upon  the  merits. 

Upon  the  trial  of  the  present  indictment,  the  proof  was  that 
the  body  of  the  note  and  signature  were  in  the  handwriting  of 
the  prisoner ;  that  the  last  endorsement  upon  the  note  was 
genuine,  and  was  made  in  Lewis  county,  at  the  request  of  the 
prisoner;  that  when  the  note  was  presented  to  the  last  endorser 
lor  his  endorsement  by  the  prisoner,  the  endorsements  alleged 
to  be  forged  were  upon  the  note;  that  the  note  was  then  trans- 


446  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t>.  Allen. 

mitted  by  mail  by  the  prisoner  to  a  bank  at  Watertown,  Jeffer- 
son county,  for  discount,  and  by  the  bank  discounted,  for  the 
benefit  of  the  maker.  The  prisoner  and  all  the  parties  to  the 
note  resided  in  the  county  of  Lewis,  where,  as  it  appeared,  the 
note  was  made  and  endorsed  and  the  forgeries  committed,  if 
committed  at  all. 

Midlin  Sf  Bagley,  for  prisoner,  objected;  that  upon  the  evi- 
dence the  record  of  acquittal  upon  the  former  indictment  was  a 
bar  to  this  prosecution;  that,  if  the  endorsements  were  in  truth 
forged,  the  proof  was  that  the  forgeries  were  committed  by 
Allen,  in  the  county  of  Lewis,  and  upon  the  trial  of  the  question 
whether  they  were  or  were  not  forgeries,  the  issue  had  been 
determined  in  favor  of  the  defandant,  and  was  conclusive  as  a 
verdict  of  a  jury  upon  a  question  directly  in  issue,  and  that  the 
prisoner  could  not  be  put  to  a  second  trial  of  the  s?me  question. 
That  the  only  question  upon  both  indictments  was  upon  the 
genuineness  of  the  endorsements,  and  that  the  defendant  could 
not  be  twice  put  in  jeopardy  upon  the  same  question  and  upon 
susbtantially  the  same  evidence,  by  varying  the  form  of  the 
indictment,  and  charging  another  offence,  which  might  have 
been  joined  in  the  former  indictment. 

J.  Moore,  Jr.  (Dis't  Att'y)  and  W.  Starbuck,  for  the  prose- 
cution, cited  2  R.  S.  670,  6  39;  12  Wend.  R.  425;  2  R.  S.  702. 
§30;  17  Wend.  R.  386. 

The  court  sustained  the  objection,  and  directed  a  verdict  of 
acquittal,  upon  the  ground  that  the  evidence  to  establish  the 
guilt  of  the  prisoner  of  the  offence  charged  in  this  indictment 
necessarily  established  his  guilt  of  the  offence  of  forgery  charged 
in  the  first  indictment,  which  was  no  longer  an  open  question, 
the  jury  upon  the  trial  of  that  indictment  having  by  their  ver- 
dict found  the  endorsements  genuine.  That  the  only  litigated 
question  of  fact  upon  both  indictments  was  the  same,  and  both 
indictments  would  be  sustained  by  substantially  the  same  evi- 
dence. 

Prisoner  acquitted. 


MONROE,  DECEMBER,  1853.  447 


SUPREME  COURT.    Monroe  General  Term,  December,  1853 
Welles,  Johnson  and  T.  R.  Strong,  Justices. 

DAVIS  vs.  THE  PEOPLE. 

Where  a  burglary  is  connected  with  a  larceny  mere  possession  of  the  stolen 
goods,  without  any  other  evidence  of  guilt,  is  not  to  be  regarded  as  prim  a 
facie  or  presumptive  evidence  of  the  burglary. 

But  where  goods  have  been  feloniously  taken  by  means  of  a  burglary  and  they 
are  immediately  or  soon  thereafter  found  in  the  actual  and  exclusive  pos- 
session of  a  person,  who  gives  a  false  account,  or  refuses  to  give  any  account 
of  the  manner  in  which  the  goods  came  into  his  possession,  proof  of  such 
possession  and  guilty  conduct  is  presumptive  evidence  not  only  that  he  stole 
the  goods,  but  that  he  made  use  of  the  means  by  which  access  to  them  was 
obtained. 

There  should  be  some  evidence  of  guilty  conduct,  besides  the  bare  possession 
of  the  stolen  property,  before  the  presumption  of  burglary  is  superadded 
to  that  of  the  larcency. 

This  was  a  writ  of  error,  brought  by  the  defendant  to  review 
the  proceedings  of  the  court  of  sessions  of  the  county  of  Mon- 
roe, upon  the  trial  of  the  defendant  on  an  indictment.  The 
first  count  of  the  indictment  was  for  burglary,  in  breaking  and 
entering  the  shop  of  the  Rochester  &  Syracuse  Railroad 
Company  at  Rochester,  by  forcibly  breaking  an  outer  window 
of  said  shop,  with  intent  to  steal,  and,  stealing  therefrom  cer- 
tain tools,  &c ,  the  property  of  Daniel  Penney,  and  other 
property  belonging  to  Thomas  Drake.  There  was  also  a  count 
for  larceny,  and  one  for  receiving  property  knowing  it  to  have 
been  stolen.  The  defendant  pleaded  not  guilty.  From  the 
testimony  of  the  witnesses  for  the  people,  the  following  facts, 
among  others  appeared  on  the  trial  :  —  That  on  Sunday  night, 
the  27th  of  March,  1853,  the  machine  shop  of  the  Rochester  & 
Syracuse  Railroad  Company,  situate  on  the  railroad  in  the 
city  of  Rochester,  was  brdken  open  and  entered  by  forcibly 
breaking  an  outer  window  of  the  said  shop,  and  that  there  was 
no  other  way  of  entering  the  shop,  except  through  the  broken 
window,  and  that  the  following  articles  which  were  then  in 
the  shop  and  the  property  of  the  persons  mentioned  in  the 


448  DECISIONS  IN  CRIMINAL  CASES. 

Davis  v.  The  People. 

indictment,  were  taken  therefrom,  viz  :  —  One  pea-jacket,  two 
pair  of  callipers,  one  two  foot  rule,  one  pocket  handkerchief, 
and  one  square;  in  all  worth  some  $10.  The  district  attorney 
then  called,  among  other  witnesses,  George  Bradshaw,  who 
testified  that  he  was  a  constable  of  the  city  of  Rochester  last 
March;  that  he  heard  of  there  being  a  trunk  on  a  boat  called 
the  "  Wiggins,"  lying  in  the  canal  near  the  weigh  lock  in 
said  city  of  Rochester.  That  he  went  there  on  Monday  or 
Tuesday  in  March,  1853,  and  found  a  trunk  on  the  boat;  that 
on  opening  the  trunk  he  found  two  pairs  of  callipers  and  a 
square  but  nothing  else  of  any  value.  The  defendant  was  not 
there.  Did  not  know  whom  the  trunk  belonged  to.  The  tools 
were  taken  to  the  police  office,  and  in  a  few  days  delivered  to 
the  owners,  who  proved  them  to  be  the  same  tools  taken  from 
the  machine  shop;  and  that  the  time  they  received  the  property 
was  some  eight  or  ten  days  after  it  was  taken.  The  boat  was 
lying  in  the  canal  about  one  mile  or  more  from  the  railroad. 
The  trunk  had  been  broken  open  before  the  witness  saw  it.  A 
piece  of  the  lock  was  lying  near  the  trunk.  It  had  the  appear- 
ance of  being  broken  open  with  an  axe  or  hammer  and  then 
nailed  down.  Eliza  Wright  testified  as  follows:  —  I  know  the 
defendant  John  Davis.  He  used  to  come  on  the  boat  and  stay 
all  night  sometimes,  t  Jived  on  the  boat  "  Wiggins,"  last 
March.  I  recollect  the  time  when  Bradshaw,  the  constable, 
came  on  the  boat  for  a  trunk.  It  was  on  a  Monday  or  Tuesday 
afternoon  in  March  last.  Three  or  four  days  before  Bradshaw 
came,  defendant  told  me  he  had  a  trunk  that  he  wished  to  bring 
on  the  boat  till  he  got  ready  to  go  and  see  his  mother.  The 
defendant  brought  the  trunk  the  morning  before  Bradshaw 
found  it  there.  It  was  Monday  morning.  I  think  he  said  he 
wanted  to  leave  it,  and  at  night  he  was  going  away  with  it  on 
the  cars.  I  did  not  open  the  trunk  nor  any  one  but  Davis,  to 
my  knowledge.  I  think  the  trunk  was  locked  when  the  de- 
fendant brought  it  there.  I  saw  it  after  I  got  up  in  the  morn- 
ing and  not  before.  I  did  not  see  defendant  bring  it  there.  On 
the  Sunday  night  before  Bradshaw  came  he  staid  on  the  boat. 
He  went  to  bed  when  the  rest  did,  and  was  in  bed  when  I  got 


MONROE,  DECEMBER,  1853.  44  (J 

Davis   v.  The  People. 

up  in  the  morning,  which  was  between  five  and  six  o'clock. 
He  slept  in  the  cabin  where  we  did.  After  he  got  up  he  said 
he  had  got  his  trunk  and  was  going  to  see  his  mother.  He 
went  away  about  noon  and  I  never  saw  him  again  till  I  saw 
him  here  at  the  trial.  I  never  saw  defendant  do  any  thing  with 
the  trunk.  There  were  two  other  boys  staid  aboard  that  Sun- 
day night.  One  was  called  Straight  and  the  other  Hughes. 
Hughes  did  not  come  aboard  that  Sunday  night  till  about  eleven 
o'clock  or  after. 

Sabrina  Wright  testified,  that  the  defendant  said  three  or 
four  days  before  the  trunk  was  brought  to  the  boat,  that  he  had 
a  trunk  that  he  was  going  to  bring  there,  and  then  was  going 
to  the  cars  to  go  home.  That  defendant  said  about  nine  o'clock 
in  the  morning  that  he  had  got  his  trunk  there.  That  she  saw 
a  trunk  there  in  the  morning  This  was  substantially  all  the 
testimony  connecting  the  defendant  with  the  trunk  and  the  sto- 
len property.  The  counsel  for  the  prisoner  then  moved  that  the 
prisoner  be  discharged,  on  the  ground  that  there  was  no  evi- 
dence tending  to  connect  the  prisoner  with  the  trunk  or  the 
articles  found  in  it.  That  the  trunk  was  not  proved  in  the 
possession  of  the  defendant.  But  the  court  decided  that  it  was 
a  question  for  the  jury.  To  which  decision  of  the  court  the 
counsel  for  the  prisoner  excepted. 

The  counsel  for  the  prisoner  then  moved  that  the  defendant 
be  discharged  from  the  count  in  the  indictment  charging  him 
with  the  crime  of  burglary,  on  the  ground  that  if  the  jury  should 
find  the  defendant  in  possession  of  the  property  stolen  or  a  part 
of  it,  that  of  itself  was  not  sufficient  to  convict  him  of  the  crime 
of  burglary.  But  the  court  denied  the  motion,  to  which  decision 
the  counsel  for  the  prisoner  excepted.  The  court  charged  the 
jury,  among  other  things,  that  in  cases  of  larceny,  after  proof 
that  property  had  been  stolen  by  some  one;  the  possession  of 
the  stolen  property  by  a  person  immediately  or  shortly  after  the 
commission  of  the  offence,  was  prima  Jade  evidence  to  charge 
such  person  with  the  crime,  and  throw  the  burden  upon  him  of 
showing  how  he  came  to  the  possession  of  the  property,  or  re- 
buttino;  in  some  way  this  prima  facie  evidence.  That  in  cases 

VOL.  I.  57 


450  DECISION'S  IN  CRIMINAL  CASES. 

Davis  t>.  The  People. 

of  burglary,  there  was  a  still  further  presumption  of  law,  that 
after  the  prosecution  had  proved  that  a  burglary  had  been  com- 
mitted by  the  breaking  into  a  building  and  stealing  property, 
and  that  the  stolen  property  was  taken  by  the  means  of  the 
burglarious  breaking,  then  the  possession  of  the  stolen  property 
immediately  after  the  commission  of  the  crime  would  be  pre- 
sumptive evidence  to  charge  the  person  so  in  possession  of  the 
same,  with  the  crime  of  burglary.  In  other  words,  that  the 
stolen  property  was  taken  by  the  defendant  in  the  manner  in 
which  it  was  proved  to  have  been  taken.  To  this  charge  the 
counsel  for  the  prisoner  excepted.  The  jury  found  the  defend- 
ant guilty  on  the  whole  indictment.  *  . 

J.  H.  Grassup,  for  the  plaintiff  in  error. 
M.  S.  Newton  (Dis't  Att'y),  for  the  people. 

By  the  Court,  JOHNSON,  J. — The  rule  that  where  goods  have 
been  stolen  and  are  immediately  or  very  soon  thereafter  found 
in  the  possession  of  a  person,  it  is  prima  facie  evidence  that 
such  person  was  guilty  of  the  larceny,  has  never  been  doubted. 
It  is  said,  however,  that  mere  recent  possession,  independent  of 
the  conduct  and  declarations  of  the  accused,  or  of  his  silence,  is 
very  imperfect  evidence  of  guilt,  as  the  apparent  possession  may 
have  resulted  from  the  malicious  act  of  another  ( 1  Starkie  Ev. 
513,  514.) 

In  the  case  of  Commonwealth  v.  Willard,  (1  Mass.  R  p.  6,) 
where  the  indictment  was  for  shop  breaking  and  stealing  goods, 
and  a  part  of  the  goods  stolen  were  found  in  the  possession  of 
the  prisoner,  Sedgwick,  Justice,  in  his  charge  to  the  jury, 
stated  the  rule  to  be  that  the  proof  of  the  possession  was  pre- 
sumptive evidence  not  only  that  he  stole  the  whole  of  the  arti- 
cles taken  from  the  shop,  but  also  of  his  breaking  and  entering, 
as  alleged  in  the  indictment.  But  in  that  case,  it  appears  that 
the  prisoner  refused  to  give  any  account  of  how  he  came  by  the 
goods.  In  The  People  v.  Frazicr,  (2  Wheeler's  Cr.  Cos.  35,) 
which  was  an  indictment  for  burglary  and  larceny,  it  was  held 


MONROE,  DECEMBER,  1853.  45 j 

Davis  v.  The  People. 

by  the  Recorder  that  possession  of  the  goods  was  presumptive 
evidence  of  the  larceny,  but  not  of  the  burglary.  The  rule  is 
laid  down  in  Cowen  fy  Hill's  Notes,  432,  in  accordance  with 
the  case  in  Massachusetts,  and  it  is  there  said  that  it  is  pre- 
sumed the  case  of  The  People  v.  Frazier  was  decided  hastily. 
Neither  of  the  cases  cited — and  they  are  the  only  ones  I  have 
been  able  to  find  where  the  question  here  involved  has  been 
passed  upon — appears  to  have  been  much  considered,  or  is  of 
any  great  weight  as  authority.  It  is  certainly  extending  the 
rule  of  presumption  to  a  great  length,  to  make  the  clearest  case 
of  possession,  even  where  the  accused  gives  a  false  account,  or 
refuses  to  give  any  account  whatever,  of  the  manner  in  which 
he  came  by  the  stolen  property,  evidence  not  only  of  the 
larceny  but  of  the  burglary  also.  The  two  crimes  are  not  ne- 
cessarily connected.  The  larceny  may  be  committed  by  one, 
and  the  burglary  by  another.  There  can  be  no  doubt  that  im- 
mediate possession  would  be  competent  evidence  to  go  to  the 
jury  in  connection  with  other  circumstances,  to  make  out  the 
charge  of  burglary.  But  that  it  is  of  itself  sufficient  to  raise 
the  presumption  of  anything  beyond  the  larceny  can  not,  I 
think,  be  maintained,  upon  authority  or  sound  reason.  Where 
a  person  is  charged  with  the  offence  of  larceny  alone,  unless  the 
property  is  clearly  traced  to  him  and  his  possession  is  shown  to 
be  exclusive  as  well  as  recent,  the  presumption  that  he  took  it 
feloniously  does  not  arise.  (Btst  on  Presumptions,  307;  22 
Law  Lib.  181.)  Finding  property  in  a  house  to  which  others 
have  access,  where  no  other  possession  is  shown,  is  not  sufficient 
to  raise  the  presumption  against  the  owner  or  chief  occupant. 
Other  circumstances  must  be  shown.  (C.  Sf  H.  Notes,  426,  7-) 
And  it  seems  to  me  in  cases  where  a  burglary  is  connected 
with  a  larceny,  mere  possession  of  the  stolen  goods  without  any 
other  evidence  of  guilt  ought  not  to  be  regarded  as  prima  facie 
or  presumptive  evidence  of  the  burglary.  I  am  of  opinion, 
however,  that  in  a  case  where  goods  have  been  feloniously 
taken  by  means  of  a  burglary  and  they  are  immediately  or  soon 
theieafter  found  in  the  actual  and  exclusive  possession  of  a 
person  who  gives  a  false  account,  or  refuses  to  give  any  ac- 


452 


DECISIONS  IN  CRIMINAL  CASES. 


Davis  v.  The  People. 


count,  of  the  manner  in  which  he  came  to  the  possession,  proof 
of  such  possession  and  guiky  conduct  is  presumptive  evi- 
dence not  only  that  he  stole  the  goods  but  that  he  made  use 
of  the  means  by  which  access  to  them  was  obtained.  There 
should  be  some  evidence  of  guilty  conduct  besides  the  bare 
possession  of  the  stolen  property,  before  the  presumption  of 
burglary  is  superadded  to  that  of  the  larceny.  In  the  present 
case  there  is  no  evidence  of  any  guilty  conduct  whatever. 
There  is  great  room  for  doubt  whether  the  prisoner  ever  had 
the  goods  in  his  actual  custody.  True,  they  were  found  in  his 
trunk,  and  if  it  had  been  shown  that  the  goods  were  locked  up 
in  it,  and  the  prisoner  was  in  possession  of  the  key,  a  strong 
presumption  would  be  raised  that  he  put  them  there  and  claimed 
the  possession.  But  there  is  nothing  to  connect  him  with  the 
goods  at  all,  except  the  fact  of  their  being  found  in  the  trunk 
by  the  officers.  The  trunk  was  not  in  the  prisoner's  custody, 
but  in  the  midship  of  a  canal  boat,  in  which  boat  other  persons 
resided  and  to  which  any  one  might  have  access.  The  trunk 
was  brought  to  the  boat  by  the  prisoner  in  the  morning,  as  he 
informed  the  persons  on  the  boat,  and  the  witness  by  whom  this 
is  proved  testifies  that  the  trunk  was  locked  when  she  saw  it 
there,  about  nine  o'clock  in  the  morning.  It  is  not  shown  that 
the  prisoner  opened  the  trunk  after  he  first  brought  it  there,  or 
that  he  went  to  it  for  any  purpose.  He  left  the  boat  before  or 
about  noon.  The  officer  who  discovered  the  goods  first  saw  the 
trunk  some  time  in  the  afternoon  of  the  same  day,  or  the  day 
after  the  prisoner  left  the  boat.  It  then  bore  unmistakeable 
evidence  of  having  been  broken  open  by  violence.  The  officer 
testifies  that  the  lock  appeared  to  have  been  broken  by  a  ham- 
mer or  axe,  and  that  a  portion  of  it  was  lying  on  the  floor  of 
the  boat  near  the  trunk  and  the  trunk  had  been  fastened  toge- 
ther by  nailing.  Only  a  small  portion  of  the  goods  stolen  were 
in  the  trunk.  It  seems  to  me  the  law  will  scarcely  presume 
that  the  prisoner  broke  his  own  trunk  open,  until  it  is  shown 
that  he  had  no  key  to  it;  especially  when  it  is  not  in  his  actual 
possession  when  found  in  this  condition,  but  is  in  a  situation 
where  others  might  readily  do  it.  This  is  scarcely  the  kind  of 


ALBANY,  DECEMBER,  JS53. 


Crozier  v.  The  People. 


possession  which  the  law  contemplates,  in  order  to  raise  the 
presumption  even  of  a  larceny. 

The  fact  that  a  portion  of  the  goods  were  found  in  the  pri- 
soner's trunk  under  such  circumstances,  is  little  if  any  stronger 
than  it  would  have  been  had  they  been  found  in  some  other 
part  of  the  boat.  And  even  admitting  that  the  jury  were  war- 
ranted in  finding,  as  a  question  of  fact,  that  the  goods  were 
found  in  the  prisoner's  possession,  still  I  am  of  opinion  the 
judge  should  have  instructed  them  that  possession  alone  of  that 
character  was  not  sufficient  to  raise  the  presumption  that  pos- 
session was  obtained  by  means  of  a  burglary  committed  by  the 
prisoner. 

On  this  ground,  I  am  of  opinion  the  conviction  and  sentence 
should  be  reversed,  and  a  new  trial  granted. 

Judgment  reversed. 


SUPREME  COURT.     Albany  General  Term,  December,  1853. 
Parker,  Wright  and  Harris,  Justices. 

JOHN  K.  CROZIER,  pl'ff  in  error  vs.  THE  PEOPLE,  def 'ts  in  error, 

It  is  not  necessary,  in  drawing  an  indictment  under  the  act  to  punish  seduction 
as  a  crime  passed  March  22,  1848,  to  allege  mutual  or  valid  promises  of 
marriage.  It  is  sufficient  to  aver,  in  the  language  of  the  act,  that  the 
prosecutrix  was  seduced  under  promise  of  marriage.  Per  PARKER,  J. 
Nor  is  it  necessary  on  the  trial  to  prove  a  valid  and  binding  promise  of  mar- 
riage. If  the  seduction  was  effected  by  means  of  a  promise  of  marriage, 
though  the  promise  was  intended  to  be  and  was  in  fact  a  false  pretence,  and 
one  which  the  seducer  knew  it  was  not  in  his  power  to  perform,  the  offence 
is  nevertheless  within  the  statute. 

By  "previous  chaste  character"  the  statute  means  personal  chastity — actual 
character — not  reputation.  In  the  absence  of  proof  such  chastity  will  be 
presumed.  But  the  presumption  may  be  overcome  by  specific  acts  of  lewd- 
ness  proved  affirmatively,  on  the  part  of  the  defendant. (a) 

(a)  Note. — From  other  cases  reported  in  this  volume,  it  will  be  seen  there 
are  differences  of  opinion  upon  the  last  two  propositions.  See  The  People  v.  Jll- 
ger,  page  333,  and  The  People  v.  Sojforrf,  page  474. 


454 


DECISIONS  IN  CRIMINAL  CASES. 


Crozier  v.  The  People. 


The  evidence  contemplated  by  the  statute  in  support  of  the  testimony  of  the 
female  is  not  confined  to  proof  of  the  fact  of  illicit  intercourse,  but  extend* 
to  proof  of  other  material  facts;  such  as  the  illegitimacy  of  her  child,  the 
regular  and  1'requent  visits  of  the  defendant,  his  being  alone  with  the  prose- 
cutrix  at  late  hours  of  night,  and  his  confessions  made  to  others  on  the  sub- 
ject of  his  engagement  to  marry  her,  &c.  But  it  is  not  sufficient  to  corroborate 
her  as  to  immaterial  facts  contained  in  her  testimony. 

This  was  a  writ  of  error  to  the  court  of  sessions  of  Washing- 
ton county.  The  plaintiff  in  error  was  indicted  under  the  act 
passed  March  22,  1848,  entitled  "  an  act  to  punish  seduction 
as  a  crime." 

The  indictment  contained  two  counts.  The  first  count 
charged  "  that  John  K.  Crosier,  late  of  the  town  of  Salem  in 
the  county  of  Washington,  on  the  8th  day  of  June,  1849,  at 
the  said  town  of  Salem  in  the  county  of  Washington  aforesaid, 
did  unlawfully,  and  feloniously,  under  a  promise  of  marriage, 
seduce  and  have  illicit  connection  with  Emeline  J.  Oderkirk, 
an  unmarried  female  of  previous  chaste  character,  against  the 
peace  of  the  people  of  the  state  of  New  York  and  their  dignity. 

The  second  count  charged,  that  the  said  John  K.  Crozier, 
&c.,  on,  £c.,  at,  &c.,  "  did  undertake  and  promise  to  marry 
Emeline  J.  Oderkirk,  an  unmarried  female  of  previous  chaste 
character;  and  that  the  said  John  K.  Crozier  did  then  and  there 
unlawfully,  under  said  promise  of  marriage,  seduce  and  have 
illicit  connection  with  the  said  Emeline  J.  Oderkirk,  then  and 
there  being  an  unmarried  female  of  previous  chaste  character, 
as  aforesaid,  against  the  peace,"  &c. 

On  the  trial  of  the  indictment  at  the  sessions,  Crozier  was 
found  guilty  and  sentenced  to  imprisonment  at  hard  laber  in 
the  Clinton  state  prison  for  the  term  of  two  years.  Crozier 

brought  a  writ  of  error. 

°  <i 

The  questions  raised  on  the  trial  sufficiently  appear  in  the 
opinion  of  the  court. 

James  Gibson,  for  plaintiff  in  error. 

J.  Potter,  (Dist.  Att'y,)  for  defendant  in  error. 


ALBANY.  DECEMBER,   '8.33.  455 

Crozier  v.  The  People. 

PARKER,  P.  J.  I  shall  examine  the  points  made  by  the 
plaintiff  in  error  in  the  order  in  which  they  were  presented  on 
the  argument. 

1.  The  first  is  that  the  indictment  was  defective  in  not  alleg- 
a  mutual  promise  of  marriage. 

The  counsel  for  Crozier  concludes  that  the  promise  contem- 
plated by  the  act  must  be  a  valid  promise  — one  that  is  legally 
binding,  and  depending  for  its  consideration  on  a  corresponding 
promise  made  by  the  party  seduced;  and  argues  that  a  lunatic 
or  an  idiot  might  be  made  liable  for  seduction  under  this  statute, 
unless  a  valid  and  binding  promise  is  intended.  The  answer 
to  that  argument  is  that  a  lunatic  or  idiot  could  not  be  guilty 
of  that  or  any  other  crime,  because  he  is  incapable  of  a  criminal 
intent.  He  has,  in  law,  no  legal  responsibility,  for  a  criminal 
act,  though  liable  for  a  tort  in  an  action  for  damages  (3  Wend. 
R.  391;  21  Wend.  619;  6  Hill,  594;  3  Barb.  S.  C.  R.  647;  17 
Venn.  R.  499.)  Even  though  mutual  promises  were  alleged 
and  proved,  a  lunatic  or  idiot  could  not,  therefore,  be  liable  for 
seduction  under  this  act.  But  I  do  not  think  the  statute  is  in- 
tended to  be  confined  to  a  case  of  a  valid  and  binding  promise 
of  marriage.  The  offence  is  seducing  "  under  promise  of  mar- 
riage." It  is  intended  to  punish  seduction  criminally,  when 
it  is  effected  by  means  of  such  a  promise.  Whether  the  pro- 
mise is  binding  or  not,  if  the  pr  >secutrix  believes  it,  the  danger 
and  wrong  are  the  same.  If  the  promise  is  the  consideration 
for,  or  the  inducement  to  the  illicit  intercourse,  the  offence  is 
complete.  The  offender  may  be  a  married  man,  and  the  fact 
of  his  being  so  may  be  unknown  at  the  time  to  the  prosecutrix. 
It  has  been  decided  that  in  such  a  case,  an  action  for  breach  of 
promise  lies  against  him.  (Mill-ward  v.  Littlewood,  1  Eng. 
Law  and  Eq.  R.  408.)  If  the  promise  is  made,  and  she,  believ- 
ing in  it,  yields  in  consequence  to  his  solicitations,  the  act  is 
within  the  statute.  Though  infancy  may  be  a  good  defence  to 
an  action  for  a  breach  of  promise  of  marriage,  (5  Cowen  R. 
475.)  I  apprehend  it  would  not  avail  against  a  prosecution 
under  this  act.  The  offence  is  certainly  of  no  less  magnitude 
morally,  <md  there  a  no  less  necessity  for  its  punishment,  be- 


456 


DECISIONS  IX  CRIMINAL  CASES. 


Crozier  v.  The  People. 


cause  the  promise  was  intended  to  be,  and  was  in  fact  a  false 
pretence. 

This  point  presents,  after  all,  only  an  abstract  proposition, 
incapable  of  any  practical  application.  It  is  not  a  supposable 
case,  that  a  seduction  could  be  effected  under  promise  of  mar- 
riage on  the  part  of  the  seducer,  without  a  corresponding 
mutual  promise  to  marry,  on  the  part  of  the  seduced.  Such 
promise  on  the  part  of  the  female  would  be  implied,  if  she 
yielded  to  the  solicitations  of  the  seducer  in  consequence  of  his 
promise  to  marry  her.  Her  assent  to  his  promise  of  marriage 
completes  the  contract  and  makes  it  mutual. 

If  I  am  correct  in  this  view,  it  follows  that  the  indictment  is 
sufficient.  I  think  the  indictment  is  also  sufficient,  even  if  a 
case  of  mutual  promises  is  contemplated  by  the  act.  The  in- 
dictment alleges  the  offence  in  the  words  of  the  statute.  In 
The  People  v.  Taylor  (3  Denio,  R.  93,)  it  was  said  by  Bronson, 
J.:  "It  is  a  general,  though  not  universal  rule,  that  in  indict- 
ments for  offences  created  by  statute,  particularly  misdemeanors, 
it  is  sufficient  to  charge  or  describe  the  offence  in  the  words  of 
the  statute."  This  rule  is  well  established  by  authority.  (7 
Peters,  142;  2  Mason;  3  Fairf.214;  2  Virg.  Cos.  402 j  1  Iredell 
JV.  C.  424;  2  McLean,  131;  2  Burr.  1035.) 

2.  The  second  point  is,  that  the  court  allowed  mutual  pro- 
mises of  marriage  to  be  proved,  though  not  averred  in  the  indict- 
ment. If  I  am  right  in  holding  that  mutual  promises  were  unne- 
cessary under  the  statute,  then  the  evidence  of  her  promise  to 
him  might  have  been  omitted,  because  it  was  not  necessary  to 
convict,  but  even  in  that  case  it  was  properly  received  as  belong- 
ing to  the  history  of  the  transaction.  It  was  a  part  of  the  same 
conversation  in  which  he  promised,  and  could  not  be  omitted 
without  destroying  its  connection  and  meaning.  It  was  also 
corroborative  of  her  testimony,  as  to  the  promise  he  had  made, 
by  supporting  its  probability.  If,  on  the  other  hand,  the  sta- 
tute contemplates  a  case  of  mutual  and  valid  promises  to  marry, 
and  the  indictment  was  sufficient,  as  being  in  the  words  of  the 
statute,  then  the  evidence  was  properly  received.  If  the  words 
"  under  promise  of  marriage,"  in  the  statute  imply  a  mutual 


ALBANY,  DECEMBER,   16-53. 


Crozier  v.  The  People. 


and  binding  contract  of  marriage,  then  the  same  words  are 
entitled  to  the  same  implication  and  construction  in  the  indict- 
ment. The  second  point  is  not,  therefore,  well  taken. 

3.  The  third  point  is,  that  the  charge  to  the  jury  was  erro- 
neous in  several  particulars.  One  was,  in  saying  that  no 
affirmative  proof  of  the  chastity  of  the  prosecutrix  was  ne- 
cessary, as  the  law  presumes  any  person  to  be  of  fair  character 
until  the  contrary  appears.  Here  was  no  necessity  for  saying 
anything  about  presumptions  of  law  on  this  question,  as  the 
prosecutrix  had  already  testified  to  her  previous  chastity,  and  it 
had  not  been  successfully  impeached.  It  was  a  question  of 
character,  not  of  reputation.  It  was  a  question  of  actual  per- 
sonal virtue.  Such  was  the  construction  given  to  the  words 
"  previous  chaste  character"  in  a  kindred  statute,  and  I  have  no 
doubt  correctly,  in  Carpenter  v.  The  People,  (8  Barb.  S.  C.  Rep. 
603.)  Now,  it  seems  to  me  plain,  that  this  comes  within  the 
general  rule,  that  good  character  is  to  be  presumed  of  parties, 
witnesses,  &c.,  until  the  contrary  is  shown.  Chastity  is  the 
general  law  of  society.  A  want  of  chastity  is  the  exception. 
It  could  only  be  impeached  by  showing  acts  of  illicit  inter- 
course. This  can  not  be  required  to  be  gone  into  negatively 
on  the  part  of  the  prosecution,  by  calling  witnesses  to  prove 
they  have  not  had  illicit  intercourse  with  her.  Chastity  is  to 
be  presumed.  Such  presumption  may  be  met  by  specific  acts 
of  lewdness  proved  affirmatively  on  the  part  of  the  defendant. 

The  part  of  the  charge  next  excepted  to  related  to  the  ne- 
cessity of  proving  mutual  and  valid  promises  of  marriage.  I 
have  already  disposed  of  that  question  on  the  first  objection 
taken  to  the  indictment. 

The  third  exception  was  to  the  following  portion  of  the 
charge;  the  judge  charged:  "  That  the  evidence  as  to  the  illicit 
intercourse  with  defendant,  was  supported  by  the  fact,  that  she 
was  impregnated;  that  she  gave  birth  to  a  child,  and  that  the 
defendant  was  a  regular  visitor."  The  statute  provides  that  no 
conviction  shall  be  had  on  the  testimony  of  the  female  seduced, 
unsupported  by  other  evidence.  The  counsel  for  Crozier  is 
mistaken  in  supposing  that  the  statute  intends  to  require,  by 

VOL.  I.  58 


458  DECISIONS  IX  CRIMINAL  CASES. 

Crozier  v.  The  People. 

the  words,  "  other  evidence,"  positive  proof  by  some  other 
person  than  the  prosecutrix,  of  the  fact  of  illicit  intercourse. 
Such  evidence  could  rarely,  if  ever,  be  obtained.  The  statute 
requires  corroborating  evidence,  but  has  not  pointed  out  what 
it  shall  be.  That  she  had  given  birth  to  an  illegitimate  child, 
and  that  Crozier  was  a  regular  visitor,  were  facts  proved  by 
others,  that  certainly  supported,  to  some  extent,  her  evidence. 
So  were  the  facts  that  he  proposed  marriage  to  her  by  a  mes- 
sage sent  to  her,  as  proved  by  her  uncle;  that  he  virtually  ad- 
mitted to  the  same  witness  his  engagement  to  marry  her;  that 
he  was  alone  with  her  late  at  night,  and  that  angry  words 
passed  between  them,  when  he  was  about  to  marry  another,  as 
proved  by  Fish.  The  charge  was  not  only  correct  on  this  point, 
but  the  evidence  would  have  warranted  the  presiding  judge  in 
enumerating  several  other  facts  as  supporting  her  testimony. 

The  judge  also  charged  that  there  was  no  proof  of  improper 
intercourse  between  the  prosecutrix  and  the  witness,  March,  at 
Graves'  tavern,  and  that  the  law  would  not  presume  it  from  the 
facts  proved. 

This  part  of  the  charge  was  strictly  correct.  There  was  no 
proof  of  any  improper  intercourse  at  thje  time  and  place  men- 
tioned March  testified  to  none.  She  testified  she  had  no 
intercourse  with  March;  showed  how  she  came  into  his  com- 
pany at  that  time;  stated  additional  facts  and  explained  the 
circumstances  relied  on  as  suspicious  and  as  warranting  an 
unfavorable  presumption.  When  the  judge  said  the  law  will 
not  presume  it  from  the  facts  proved,  he  intended  to  include  all 
the  facts  proved  on  both  sides  relating  to  that  transaction;  and 
clearly  from  them  no  unfavorable  inference  could  be  drawn. 

Most  of  the  several  requests  and  refusals  to  charge,  are  but 
the  converse  of  the  propositions  already  discussed,  and  call  for 
no  further  notice.  But  there  is  one  which  presents  a  different 
question.  Crozier  "s  counsel  asked  the  court  to  charge,  "  that 
supporting  evidence  of  immaterial  facts  contained  in  her  evi- 
dence was  not  supporting  evidence  within  the  statute."  The 
court  refused  so  to  charge,  to  which  refusal  the  defendant's 
counsel  excepted. 


ERIE,  JANUARY,    1834.  459 

Mackay  v.  The  People. 

This  decision  was  palpably  erroneous.  When  the  statute 
provided  that  no  conviction  should  be  had  under  the  provisions 
of  that  act  on  the  testimony  of  the  female  seduced,  unsupported 
by  other  evidence,  it  certainly  did  not  mean  that  it  was  suf- 
ficient to  support  any  immaterial  evidence  she  may  have  given. 
The  facts  as  to  which  she  is  corroborated  must  be  material 
facts,  though  it  is  not  necessary  that  one  of  them  should  be  that 
of  illicit  intercourse  itself.  Many  other  facts  may  be  material, 
as  I  have  already  shown.  For  this  error,  the  judgment  of  the 
County  Court  must  be  reversed,  and  a  new  trial  awarded. 

HARRIS,  J.,  concurred.  WRIGHT,  J.,  concurred  in  the  con- 
clusion, upon  the  ground  last  considered,  but  dissented  from  the 
opinions  expressed  on  the  first  and  second  points. 


SUPREME  COURT.     Erie  General  Term,  January,  1854.     Mar* 
vin,  Bowen  and  Green  Justices. 

MACKAY  pl'ff  in  error  vs.  THE  PEOPLE  def 'ts  in  error. 

The  power  to  punish  by  imprisonment  in  a  state  prison,  upon  a  conviction  for 
an  attempt  to  commit  a  crime,  is  not  limited  to  those  cases  where  the  im- 
prisonment in  a  state  prison,  if  the  crime  attempted  had  been  consummated, 
must  be  for  four  years  or  more;  but  in  all  cases  where  the  crime  attempted 
may  be  punished  four  years  or  more  in  a  state  prison,  the  court  may  sentence 
the  convict  to  imprisonment  in  a  state  prison  for  a  time  not  exceeding  one 
half  of  the  longest  time  of  imprisonment  prescribed  for  a  conviction  of  the 
offence  attempted. 

Where,  by  the  statute,  the  imprisonment  in  the  state  prison  for  a  commission 
of  the  crime  attempted  must  be  for  a  term  less  than  four  years,  the  person 
convicted  of  the  attempt  can  only  be  sentenced  to  imprisonment  in  a  county 
jail  for  not  more  than  one  year. 

Grand  larceny  being  punishable  for  a  term  of  not  more  than  five  and  not  less 
than  two  years,  a  person  convicted  of  an  attempt  to  commit  grand  larceny 
may  be  sentenced  to  imprisonment  in  the  state  prison  for  two  years  and  six 
months. 

Error  to  the  Erie  sessions.     The  plaintiff  in  error  was  con- 
victed of  an  attempt  to  commit  grand  larceny.     The  court  of 


460 


DECISIONS  IN  CRIMINAL  CASES. 


Mackay  v.  The  People. 


sessions  sentenced  him  to  confinement  in  the  state  prison  at 
Auburn,  for  the  term  of  two  years  and  six  months.  Tho  writ 
of  error  was  prosecuted  to  reverse  the  sentence. 

5.  H.  Austin,  for  the  plaintiff  in  error,  cited  2  R.  S.  679, 
§63;  ib.  700,  §  12;  ib.  698,  §3;  subd.  2,  3. 

JJ.  Sawin,  (  Dis't  Att'y)  for  defendants. 

By  the  Court,  MARY  IN,  P.  J. — The  counsel  for  Mackay  insisted 
that  the  court  of  sessions  had  no  authority  to  sentence  him  to 
imprisonment  in  the  state  prison,  but  that  he  should  have  been 
sentenced  to  imprisonment  in  the  "  county  jail  for  not  more 
than  one  year."  He  argues  that  there  can  be  no  imprisonment 
in  the  state  prison  upon  a  conviction  for  an  attempt  to  commit 
any  crime,  unless  the  punishment  for  the  crime  attempted  must 
necessarily  be  imprisonment  in  a  state  prison  for  four  years  or 
more.  The  punishment  for  grand  larceny,  is  imprisonment  in 
a  state  prison  for  a  term  not  exceeding  five  years.  (2  .R.  S. 
679,  §63.) 

The  imprisonment  upon  a  conviction  for  grand  larceny  may 
be  for  any  term  less  than  five  years  and  not  less  than  two  years. 
2  R.  S.  698,  §  3,  provides  for  the  punishment  for  an  attempt  to 
commit  an  offence  prohibited  by  law.  By  the  second  subdi- 
vision of  the  section,  it  is  provided  that,  "  If  the  offence  so 
attempted  be  punishable  by  imprisonment  in  a  state  prison,  for 
four  years  or  more,  or  by  imprisonment  in  a  county  jail,  the 
person  convicted  of  such  attempt,  shall  be  punished  by  impri- 
sonment in  a  state  prison  or  in  a  county  jail,  as  the  case  may 
be,  for  a  term  not  exceeding  one  half  the  longest  term  of 
imprisonment  prescribed  upon  a  conviction  for  the  offence  so 
attempted." 

The  third  subdivision  provides,  "  If  the  offence  so  attempted 
be  punishable  by  imprisonment  in  a  state  prison  for  any  time 
less  than  four  years,  the  person  convicted  of  such  attempt 
shall  be  sentenced  to  imprisonment  in  a  county  jail  for  not 
more  than  one  year."  It  is  also  provided  in  the  same  act,  (p 


ERIE.  JANUARY,   1S-34. 


Mackay  v.  The  People. 


700,  §  12,)  that  no  person  shall  in  any  case  be  sentenced  to 
imprisonment  in  a  state  prison  for  any  term  less  than  two  years. 
In  view  of  these  provisions,  I  think  the  power  to  punish  by 
imprisonment  in  a  state  prison,  upon  a  conviction  for  an  at- 
tempt to  commit  a  crime,  is  not  limited  to  those  cases  where 
the  imprisonment  in  a  state  prison,  if  the  crime  attempted  has 
been  committed,  must,  by  the  statute,  be  four  years  or  more. 
On  the  contrary,  I  think,  in  all  cases,  where  the  crime  attempted 
may  be  punished  four  years  or  more  in  a  state  prison,  the  court 
may  sentence  the  convict  to  imprisonment  in   a  state  prison 
"for   any  time  not  exceeding    one  half  the  longest  time  of 
imprisonment  prescribed  upon  a  conviction  for  the  offence  so 
attempted,"  of  course  not  less  than  two  years.     In  those  cases 
where  by  the  statute  the  imprisonment  in  state  prison  for  the 
crime  attempted,  must  be   for   a  term   less  than  four  years,  the 
person  convicted  of  the  attempt  can  only  be  sentenced  to  im- 
prisonment in  a  county  jail  for  not  more  than  one  year.     The 
crime  of  grand  larceny  is  punishable  by  imprisonment  in  state 
prison  for  a  term  of  five  years.     It  can  not   exceed  five  years, 
and  it  may  be  for  any  time  between  two  and  five  years,  in  the 
discretion  of  the  court.     It  is  true  it  is  not  necessarily  punisha- 
ble four  years  or  more,  and  it  is  also  true  that  it  is  punishable 
by  imprisonment  in  a  state  prison  for  a  term  less  than  four 
years,  though  it  may  exceed  that.    The  intentions  of  the  legis- 
lature in  subdivisions  second   and  third  are  not  very  clearly 
expressed.     Effect  most  be  given  to  the  latter  clause  of  subdi- 
vision two,  "  for  a  term  not  exceeding  one  half  the  longest  term 
of  imprisonment  prescribed  upon  a  conviction  for  the  offence  so 
attempted."     In  a  conviction  for  grand   larceny,  the  longest 
term  of  imprisonment  is  five  years,  and  unless  this  subdivision, 
is  to  be  construed  as  limiting  the  power  of  the  court  to  impri- 
son in  state  prison,  to  cases  where  the  punishment  for  the  crime 
attempted  must  be  for  four  years  or  more,  then  the  court,  in  the 
present  case,  has   not  exceeded  its  authority.     The  sentence 
was  for  two  years  and  six  months,  half  of  the  longest  term  of 
imprisonment  prescribed  for  the  crime  of  grand  larceny.     The 
•view  I  have  taken  of  these  provisions  of  the  statute  is  strength- 


462  DECISIONS  IN  CRIMINAL  CASES. 

Mackay  r.  The  People. 

ened  by  considering  the  general  system. of  our  criminal  code 
as  declared  in  the  statute.  There  are  many  crimes,  the 
punishment  for  which,  by  imprisonment  in  state  prison,  is  left 
entirely  discretionary  with  the  court,  not  exceeding  a  specified 
term,  and  of  course  not  less  than  two  years;  thus,  for  inveigl- 
ing or  kidnapping,  the  punishment  is  to  be  by  imprisonment  in 
a  state  prison  not  exceeding  ten  years;  accessories  are  to  be 
punished  by  imprisonment  in  state  prison  not  exceeding  six 
years,  or  in  a  county  jail,  &c.;  so  for  selling,  &c.,  a  person  of 
color  kidnapped,  &c.,  the  imprisonment  is  not  to  exceed  ten 
years;  it  may  be  in  a  county  jail,  &,c.  So,  for  decoying  child- 
ren. For  abandoning  children,  the  imprisonment  is  not  to 
exceed  seven  years.  Arson,  in  the  fourth  degree,  may  be 
punished  by  imprisonment  in  the  state  prison  for  a  term  not 
more  than  seven  years  and  not  less  than  two,  or  the  imprison- 
ment may  be  in  a  county  jail,  not  exceeding  one  year.  Per- 
sons falsely  personating  another  and  -doing  certain  acts,  upon 
conviction,  are  to  be  punished  by  imprisonment  in  a  state 
prison  for  a  term  not  exceeding  ten  years.  By  looking  through 
the  statute,  many  other  cases  will  be  found  where  the  punish- 
ment is  to  be  by  imprisonment  not  exceeding  ten  years,  and 
some  not  exceeding  seven  years,  &c.,  leaving  the  term  of 
imprisonment  between  the  time  specified  and  two  years  entirely 
discretionary  with  the  court.  In  all  these  cases  the  punish- 
ment may  be  by  imprisonment  in  a  state  prison  for  a  term  less 
than  four  years,  and  there  is  nothing  requiring  that  the  time  of 
imprisonment  should  be  four  years  or  more;  and  if  the  con- 
struction of  subdivisions  2  and  3,  of  section  3,  (2  R.  S.  698,) 
for  which  the  counsel  for  the  plaintiff  in  error  contends,  is 
correct,  viz.:  that  no  person  can  be  sentenced  to  a  state  prison, 
except  in  a  case  where,  had  he  been  convicted  of  the  crime 
attempted,  he  must  have  been  sentenced  for  four  years  or  more; 
then,  in  all  the  cases  above  referred  to  and  other  cases,  where 
the  time  of  imprisonment  is  not  to  exceed  ten  years  or  seven 
years,  or  other  period  above  four  years,  and  may  be  less  than 
four  years,  there  can  be  no  imprisonment  in  a  state  prison  upon 
a  conviction  for  an  attempt  to  commit  the  crime.  The  person 


ERIE,  JANUARY,  1854. 


Mackay  v.  The  People. 


convicted  of  an  attempt  to  commit  these  high  crimes  can  only 
be  punished  by  imprisonment  in  a  county  jail  one  year.  In  my 
opinion  such  is  not  the  true  construction  of  the  statute. 

It  has  been  noticed  that  no  person  can  be  sentenced  to  a 
state  prison  for  a  term  less  than  two  years,  and  imprisonment 
in  a  county  jail  is  limited  generally  to  one  year.  By  consult- 
ing the  revisers'  notes,  it  will  be  seen  that  they  reported,  that, 
"  If  the  offence  so  attempted  be  punishable  by  imprisonment 
in  a  state  prison  or  a  county  jail,  the  person  convicted  of  such 
attempt  shall  be  punished  by  imprisonment  in  a  state  prison 
or  in  a  county  jail,  for  a  term  not  exceeding  the  one  half  of  the 
longest  term  for  which  he  might  have  been  sentenced  to  such 
imprisonment,  if  he  had  been  convicted  of  the  offence  so  at- 
tempted." There  are  cases  where  the  punishment  may  be  by 
imprisonment  in  state  prison  for  a  term  not  exceeding  three 
years  and  so  also  not  exceeding  two  years.  As  the  system  pro- 
hibited sentencing  any  person  to  imprisonment  in  state  prison, 
for  a  term  less  than  two  years,  the  provision,  as  reported,  left 
it  in  doubt  what  sentence  should  be  given  in  cases  where  the 
imprisonment  in  state  prison  was  to  be  for  a  term  less  thanybwr 
years,  as  the  imprisonment  upon  a  conviction  for  the  attempt 
was  not  to  exceed  the  one  half  of  the  longest  time  for  which 
the  convicted  person  might  have  been  sentenced  if  he  had  been 
convicted  of  the  offence  attempted.  The  legislature,  I  think, 
attempted  to  obviate  the  difficulty  and  substituted  subdivisions 
2  and  3,  in  §  3,  as  we  now  find  them.  Hence  the  language 
"  punishable  by  imprisonment  in  a  state  prison  for  four  years 
or  more  "  and  retaining  the  language  in  the  original,  as  pro- 
posed by  the  revisers,  authorizing  the  imprisonment  "  for  a 
term  not  exceeding  one  half  the  longest  term  of  imprisonment 
prescribed  upon  a  conviction  for  the  offence  so  attempted."  In 
these  cases,  when  the  imprisonment  was  to  be  less  than  four 
years,  a  sentence  for  half  the  time  would  be  a  sentence  for  less 
than  two  years,  which  by  another  provision  of  the  same  statute, 
was  prohibited.  Hence  the  provision  in  the  3d  subdivision, 
requiring  in  such  cases  imprisonment  in  a  county  jail. 


464  DECISIONS  IN  CRIMINAL  CASES. 

Woodin  v.  Th»  People. 

I  think  the  sentence  of  the  Court  of  Sessions  was  authorized 
by  the  statute  and  that  the  judgment  should  be  affirmed. 

Judgment  affirmed 


SUPREME  COURT.    Monroe  General  Term,  March,  1854.    Welles, 
.  Selden  and  Johnson,  Justices. 

HENRY  WOODIN  pl'ff  in  error  vs.  THE  PEOPLE  defts  in  error. 

On  the  trial  of  an  indictment  for  rape,  it  is  competent  for  the  counsel  for  the 
prisoner,  on  the  cross  examination  of  the  prosecutrix,  to  ask  her  whether 
the  treatment  complained  of  li  was  with  her  consent  or  against  her  will." 

Such  a  question  is  not  objectionable  in  form,  but  if  the  objection  to  it  had  been 
put  on  that  ground,  and  an  exception  taken,  it  would  not  have  been  available, 
for  the  form  of  a  question,  if  not  otherwise  objectionable,  is  a  matter  of  dis- 
cretion with  the  court. 

The  credibility  of  witnesses  is  exclusively  a  question  for  the  jury,  and  it  is  not 
erroneous  in  the  court  to  refuse  to  charge  the  jury  how  they  ought  to  find 
in  a  case  resting  on  the  credibility  of  witnesses. 

The  opinion  of  a  physician  upon  a  question  not  involving  medical  skill  or 
science  is  not  admissible  evidence. 

Where  it  appeared  from  the  testimony  of  a  physician  that  the  prosecutrix  foi 
an  alleged  rape  was  of  more  than  ordinary  strength  and  health,  and  that  the 
defendant  was  sixty  years  of  age,  the  following  question,  put  to  the  same 

•  witness,  was  held  to  be  incompetent.  "  From  what  you  know  of  her  health 
and  strength,  in  your  opinion,  could  the  defendant  have  had  carnal  connection 
with  her  against  her  will,  without  resort  to  other  means  than  the  exercise 
of  his  ordinary  physical  powers?"  Htld,  that  this  was  a  question  in  regard 
to  which  the  jury  could  judge  equally  well  with  the  witness,  and  did  not  in- 
volve medical  skill  or  science,  and  was  not  a  case  for  an  expert. 

Held,  also,  that  the  question,  whether  in  the  opinion  of  the  witness  a  rape 
could  be  committed  on  a  female  who  had  borne  children,  and  also  was  in 
ordinary  health  and  strength,  without  resort  to  other  means  than  ihe  ex- 
ercise of  ordinary  physical  powers,  came  within  the  same  rule  and  was 
incompetent,  though  the  prosecutrix  had  previously  testified  that  she  had 
borne  two  children  before  the  alleged  rape,  and  that  the  ravishment  was 
accomplished  by  means  of  the  superior  strength  of  the  prisoner. 

When  the  prosecutrix  had  testified,  that  as  soon  as  practicable  after  the  alleged 
rape  she  made  it  known  and  complained  to  her  husband,  and  to  her  mother 
and  Judge  Jerome  and  other  persons,  and  was  corroborated  by  the  testimony 


MONROE,  MARCH,  1834.  455 

Woodin  v.  The  People. 

of  her  husband  as  to  the  disclosures  to  him,  and  it  appeared  that  Judge 
Jerome  was  present  at  the  trial  and  was  not  called  as  a  witness,  it  was  held 
not  to  be  erroneous  for  the  court  to  refuse  to  charge  the  jury,  that  the 
corroborating  evidence  of  Judge  Jerome  and  others  as  to  her  disclosures  wag 
necessary  to  confirm  her  testimony  and  entitle  it  to  full  credit;  and  held  that 
the  court  correctly  charged  the  jury,  that  it  was  not  necessary  for  the  people 
to  call  the  other  persons  referred  to  as  witnesses,  if  the  jury  were  satisfied 
that  the  prosecutrix  and  her  husband  had  testified  truly,  in  regard  to  the  com- 
munications made  by  her. 

This  case  came  before  the  court  on  certiorari  to  the  court  of 
Oyer  and  Terminer  of  Ontario  county.  The  facts  are  suf- 
ficiently stated  in  the  opinion  of  the  court. 

Jl.  Warden,  for  plaintiff  in  error. 

J.  Jl.  Spencer,  for  defendants  in  error. 

By  the  Court,  WELLES,  J. — The  defendant  was  tried  and 
convicted  at  the  Oyer  and  Terminer  in  Ontario  county,  in  Feb- 
ruary, 1853,  of  a  rape  upon  the  body  of  Sarah  Woodin,  his 
son's  wife. 

In  the  course  of  the  direct  examination  of  the  prosecutrix  as 
a  witness,  and  after  she  had  testified  to  the  principal  facts  of 
the  case,  the  district  attorney  asked  the  witness  the  following 
question:  "Was  this  treatment  with  your  consent  or  against 
your  will?"  The  defendant's  counsel  objected  to  the  question, 
"  on  the  ground  that  it  is  the  very  question  for  the  jury  to  de- 
determine  from  all  the  facts,"  &c.  The  court  overruled  the 
objection,  and  the  defendant's  counsel  excepted,  and  the  wit- 
ness answered  that  it  was  wholly  against  her  will.  There  was 
no  error  in  this  decision.  The  only  possible  objection  there 
could  be  to  the  question,  was  in  relation  to  its  form,  as  indi- 
cating the  answer  of  the  witness  in  one  of  two  ways.  If  the 
objection  had  been  placed  on  that  ground,  it  would  not  have 
been  error,  for  the  reason  that  the  form  of  a  question,  if  it  is 
not  otherwise  objectionable,  is  a  matter  of  discretion  with  the 
court.  The  objection,  however,  was  not  put  on  the  ground  of 
the  form  of  the  question;  nor  do  I  think  the  question  was  ob- 

VOL.  I.  59 


466 


DECISIONS  IN  CRIMINAL  CASES. 


Woodin  v.  The  People. 


jectionable  in  form  even.  As  to  its  substance,  it  was  clearly 
proper,  as  going  to  prove  directly  an  essential  ingredient  of  the 
crime  charged. 

After  the  prosecution  rested,  the  defendant's  counsel  requested 
the  court  to  instruct  the  jury,  that,  as  matter  of  law,  it  was  not 
a  case  where,  upon  the  evidence,  there  could  legally  be  a  con- 
viction for  the  offence  of  rape,  which  request  the  court  declined 
and  the  defendant's  counsel  excepted.  If  the  testimony  of  the 
witnesses  was  to  be  believed,  the  crime  charged  was,  in  my 
opinion,  proved.  The  credit  of  the  witnesses  was,  exclusively, 
a  question  for  the  jury.  The  request  of  the  defendant's  counsel 
was  therefore  properly  refused. 

It  was  proved,  on  the  part  of  the  defendant,  by  a  physician, 
who  knew  the  defendant  and  the  prosecutrix,  and  lived  in  their 
neighborhood,  that  she,  the  prosecutrix,  was  a  female  of  more 
than  ordinary  strength  and  health,  and  that  the  defendant  was 
sixty  years  of  age.  The  defendant's  counsel  then  asked  the 
physician  the  following  questions:  "  From  what  you  know  of 
Mrs.  Woodin's  health  and  strength,  in  your  opinion,  could  the 
defendant  have  carnal  connection  with  her  against  her  will, 
without  resorting  to  other  means  than  the  exercise  of  his  ordi- 
nary physical  powers?  From  what  you  know  of  Mrs.  Woodin's 
health  and  strength,  in  your  opinion,  could  a  man  have  carnal 
connection  with  her  against  her  will,  without  resort  to  violence, 
beyond  the  exercise  of  his  ordinary  physical  powers?"  To  each 
of  these  questions  the  counsel  for  the  people  objected,  which 
objections  were  sustained,  and  the  defendant's  counsel  excepted. 
The  evidence  of  the  opinion  of  the  witness  was  clearly  inad- 
missible. It  did  not  involve  medical  skill  or  science,  nor  was 
it  a  case  for  an  expert.  The  jury  could  judge  equally  well 
with  the  witness,  after  they  were  in  possession  of  the  facts, 
upon  which  he  must  necessarily  base  his  opinion. 

The  defendant's  counsel  then  offered  to  prove  by  the  same 
and  other  medical  witnesses,  that  the  crime  of  rape  could  not, 
in  their  opinion,  be  committed  upon  a  female  who  has  borne 
children,  and  who  is  in  ordinary  health  and  strength,  without  a 
resort  to  other  means  than  the  exercise  of  his  ordinary  physical 


MONROE,   MARCH,    1804. 


Woodir.  v.  The  People. 


powers.  This  offer  was  objected  to  on  the  part  of  the  people, 
and  the  objection  sustained,  and  an  exception  taken.  The  pro- 
secutrix had  previously  testified  that  she  had  two  children 
before  the  alleged  rape  was  committed  upon  her,  and  in  detail- 
ing the  circumstances  of  the  ravishment,  she  stated,  in  sub- 
stance, that  the  defendant  accomplished  his  purpose  by  means 
of  his  superior  strength.  I  think  the  evidence  here  offered  was 
equally  objectionable  with  the  last.  It  was  not  a  subject  for 
the  evidence  of  the  opinions  of  experts  or  of  scientific  men. 

The  prosecutrix  had  testified,  in  substance,  that  as  soon  as 
practicable  after  the  consummation  of  the  crime  by  the  defend- 
ant, she  made  complaint  to  her  husband  and  made  known  to- 
him  the  violation  of  her  person.  Also  that  soon  afterwards  she 
stated  the  same  things  to  her  mother,  Judge  Jerome,  and  some 
other  persons.  Henry  Woodin,  jr.,  her  husband,  corroborated 
her  testimony  in  relation  to  her  disclosures  to  him  and  to  Judge 
Jerome.  The  bill  of  exceptions  states  that  Judge  Jerome  was 
in  court  during  the  trial  as  a  witness  subpoenaed  by  the  people 
and  the  defendant.  Also  that  there  was  no  evidence  from  any 
of  the  persons  to  whom  she  testified  she  made  known  the  alle- 
ged violation  of  her  person,  except  the  testimony  of  her  hus- 
band. 

The  charge  of  the  presiding  justice  to  the  jury  was  full  upon 
all  the  points  and  questions  involved.  Quite  a  number  of  ex- 
ceptions were  taken  to  various  parts  and  portions  of  it  respect- 
ively, by  the  defendant's  counsel.  I  do  not  feel  called  upon  to 
notice  them  in  detail,  but  content  myself  with  remarking  that, 
in  my  judgment,  none  of  the  exceptions  are  well  taken.  The 
one  most  relied  upon  on  the  argument,  is  the  one  growing  out 
of  the  request  of  the  defendant's  counsel  that  the  court  should 
charge  the  jury  that  the  omission  to  confirm  the  testimony  of 
the  prosecutrix  in  relation  to  her  disclosures  to  the  individuals 
to  whom  she  made  them,  besides  those  to  her  husband,  was  an 
omission  to  show  by  competent  proof,  important  circumstances, 
necessary  to  confirm  her  testimony  and  entitle  it  to  full  credit. 
The  presiding  judge  refused  so  to  charge,  and  the  defendant's 
counsel  excepted;  and  the  judge  did  thereupon  charge  the  jury 


463  DECISIONS  IN  CRIMINAL  CASES. 

Woodin  v.  The  People. 

on  that  subject,  that  it  was  not  necessary  for  the  people  to  call 
the  other  persons  referred  to,  as  witnesses,  if  the  jury  were 
satisfied  that  the  prosecutrix  and  her  husband  had  testified  truly 
in  regard  to  the  communications  made  by  her.  The  judge  also 
stated  to  the  jury  that  Judge  Jerome  had  been  in  attendance  as 
a  witness  during  the  whole  trial,  and  might  have  been  caWed 
upon  to  contradict  the  statements  alleged  to  have  been  made  to 
him  had  they  been  untrue,  to  which  the  defendant's  counsel 
excepted.  I  do  not  discover  any  just  ground  of  complaint  in 
respect  to  the  charge  or  refusal  to  charge  in  this  respect.  It 
was  true  that  Judge  Jerome  was  in  court  as  remarked  by  the 
judge  to  the  jury.  The  prosecutrix  had  testified  that  she  made 
the  disclosures  to  her  husband,  and  he  had  testified  to  the  same 
thing.  If  the  jury  believed  them,  it  was  sufficient.  The 
omission  to  call  the  other  persons  as  witnesses  did  not,  in  my 
opinion,  warrant  the  court  to  instruct  the  jury  that  she  was 
thereby  discredited.  It  was,  after  all,  a  question  for  the  jury, 
and  involved  no  legal  point  upon  which  an  exception  could  be 
taken. 

Upon  the  whole,  I  am  constrained  to  say  that,  in  my  judg- 
ment, the  charge  was  throughout  just,  liberal  and  fair,  and  was 
not  obnoxious  to  any  legal  objection.  Much  of  the  argument 
of  the  defendant's  counsel  was  designed  to  show  that  the  verdict 
was  not  warranted  by  the  evidence.  This  we  can  not  give 
heed  to  in  a  writ  of  error  or  certiorari  in  the  nature  of  a  writ 
of  error,  founded  upon  a  bill  of  exceptions. 

The  judgment  of  the  court  of  Oyer  and  Terminer  should  be 
affirmed 


OSWEGO.  APRIL,  :854.  459 


SUPREME  COURT.    Oswego  General  Term,  April  1854.    Hubbard, 
Pratt  and  Bacon,  Justices. 

ADAM  DENNIS  pl'fT  in  error  vs.  THE  PEOPLE  Hefts  in  error. 

9n  the  trial  of  an  indictment  for  forgery,  alleged  in  the  first  count  to  have 
been  committed  by  the  defendant,  by  having  in  his  possession  a  forged  bank 
note,  purporting  to  have  been  issued  by  a  certain  banking  association,  with 
intent  to  utter  the  same,  and  in  the  second  count,  with  uttering  and  publish- 
ing such  note,  it  is  competent  to  prove  by  parol  that  there  is  such  an  in. 
stitution  in  existence  doing  business  in  this  state,  without  introducing  in 
evidence  the  articles  of  association  under  which  such  bank  was  organized. 

This  was  a  certiorari  to  the  Oyer  and  Terminer  of  the  county 
of  Onondaga.  The  plaintiff  in  error  was  indicted  in  that  court 
for  forgery.  By  the  first  count  in  the  indictment,  it  was  pre- 
sented "  that  Adam  Dennis,  late  of  the  city  of  Syracuse,  'in  the 
county  of  Onondaga  aforesaid,  on  or  about  the  fifteenth  day  of 
November,  in  the  year  of  our  Lord  one  thousand  eight  hund- 
red and  fifty-three,  with  force  and  arms,  at  the  city  of  Syracuse, 
in  the  county  of  Onondaga  aforesaid,  feloniously  had  in  his 
custody  and  possession,  and  did  receive  from  some  person  or 
persons  to  the  jurors  aforesaid  unknown,  a  certain  forged 
and  counterfeit  negotiable  promissory  note  for  the  payment  of 
money,  commonly  called  a  bank  note,  purporting  to  have  been 
issued  by  a  certain  association  or  company  called  the  Bank  of 
Lowville,  duly  authorized  for  that  purpose  by  the  laws  of  the 
state  of  New  York,  which  said  last  mentioned  false  forged  and 
counterfeited  negotiable  promissory  note  for  the  payment  of 
money  is  as  follows,  that  is  to  say."  (Here  followed  a  desciip- 
tion  of  a  two  dollar  bank  note  on  the  Bank  of  Lowville.)  "With 
intention  to  utter  and  pass  the  same  as  true,  and  to  permit, 
cause  and  procure  the  same  to  be  so  uttered  and  passed,  with 
the  intent  to  injure  and  defraud  the  Bank  of  Lowville  and 
divers  other  persons  to  the  jurors  aforesaid  unknown,  he  the  said 
Adam  Dennis  then  and  there  well  knowing  the  said  last  men- 
tioned false,  forged,  and  counterfeited  promissory  note  for  the 
payment  of  money  to  be  false,  forged  and  counterfeited  as 


470  DECISIONS  IN  CRIMINAL  CASES. 

Dennis  v.  The  People. 

aforesaid,  against  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  of  the  people  of  the  state 
of  New  York  and  their  dignity." 

The  second  count  was  as  folio  ws^  "  and  the  jurors  aforesaid, 
upon  their  oaths  aforesaid,  do  further  present,  that  the  said 
Adam  Dennis  afterwards,  to  wit:  on  the  day  and  year  last 
aforesaid,  with  force  and  arms  at  the  city  and  county  aforesaid, 
feloniously  and  falsely  did  utter  and  publish  as  true,  with 
intent  to  injure  and  defraud  the  said  the  Bank  of  Lowville, 
and  divers  other  persons  to  the  jurors  aforesaid  unknown,  a 
certain  other  false,  forged,  and  counterfeited  negotiable  pro- 
missory note  for  payment  of  money,  commonly  called  a  bank 
note,  purporting  to  have  been  issued  by  a  certain  corporation 
or  company,  called  the  Bank  of  Lowville,  duly  authorized  for 
that  purpose  by  the  laws  of  the  state  of  New  York,  Avhich  said 
last  mentioned  false,  forged,  and  negotiable  promissory  note,  for 
the  payment  of  money  is  as  follows,  that  is  to  say:  (Here  fol- 
lowed a  description  of  a  two  dollar  bank  note  on  the  Bank  of 
Lowville.)  The  said  Adam  Dennis,  at  the  said  time  he  so 
uttered  and  published  the  said  last  mentioned  false,  forged  and 
counterfeited  negotiable  promissory  note  for  the  payment  of 
money,  as  aforesaid,  then  and  there  well  knowing  the  same  to 
be  false,  forged,  and  counterfeited,  against  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
of  the  people  of  the  state  of  New  York,  and  their  dignity." 

The  plaintiff  in  error  pleaded  not  guilty.  On  the  trial  of  the 
cause,  E.  B.  Wicks,  a  witness  sworn  for  the  prosecution,  was 
asked  the  following  question:  "Is  there  such  an  institution 
doing  business  in  the  state  of  New  York  as  a  banking  institu- 
tion as  "  The  Bank  of  Lowville."  This  question  was  objected 
to  by  the  prisoner's  counsel  on  the  ground  that  parol  proo" 
could  not  be  given  of  that  fact,  and  that  the  prosecution  should 
produce  the  articles  of  association  of  the  institution  for  that 
purpose.  The  court  overruled  the  objection  and  the  prisoner's 
counsel  excepted. 

The  witness  testified  that  there  was  an  institution  doing 
business  as  a  banking  institution  at  Lowville,  in  Lewis  county, 


OSWEGO,  APRIL,   1854  47  j 


Dennis  ».  The  People. 


that  he  had  been  in  their  banking  house,  and  done  business 
with  them,  &c.  The  jury  found  the  defendant  guilty,  where- 
upon the  cause  was  brought  before  this  court. 

• 

J.  R.  Anderson,  for  the  plaintiff  in  error.  The  objection 
taken  to  the  evidence  offered  and  received  was  well  taken  and 
should  have  prevailed.  (Barb.  Cr.  Law,  293;  6  Johns.  19;  12 
id.  221-,  25  Wend.  472;  8  John.  378;  14  id.  416;  1  Wend 
555;  3  id.  296;  4  Denio,  392;  7  Wend.  539;  15  Wend.  314; 

2  Russ.  on  Cr.  354;  Russ.  and  Ryan,  291.) 

• 

Chs.  Andrews,  for  the  people.  The  question  to  the  witness 
was  proper.  The  objection  was  put  on  the  ground  that  the  act 
of  incorporation  must  be  produced,  and  that  parol  evidence  of 
that  fact  could  not  be  received.  The  production  of  the  act  of 
incorporation  would  not  affect  the  question,  as  it  would  still 
remain  to  be  proved  by  parol  that  they  were  doing  business  as 
a  bank. 

By  the  Court,  BACON,  J.  —  The  plaintiff  in  error  was  indicted 
at  the  Onondaga  Oyer  and  Terminer,  in  February,  1853,  for  the 
crime  of  forgery.  The  first  count  of  the  indictment  charged 
the  prisoner  with  having  in  his  custody  and  possession  a  certain 
forged  and  counterfeit  negotiable  promissory  note  for  the  pay- 
ment of  money,  commonly  called  a  bank  note,  purporting  to 
have  been  issued  by  a  certain  association  or  company  called 
the  Bank  of  Lowville,  duly  authorized  for  that  purpose  by  the 
laws  of  the  state  of  New  York.  The  note  was  then  set  forth 
and  the  prisoner  was  charged  with  having  said  note  "  with  the 
intention  to  utter  and  pass  the  same  as  true,  and  to  procure  the 
same  to  be  uttered  and  passed  with  the  intent  to  injure  and 
defraud  the  Bank  of  Lowville,  and  divers  other  persons  to  the 
jury  unknown,  he  well  knowing  the  same  to  be  false,  forged, 
&c." 

The  second  count  charged  him  with  uttering  and  publishing 
the  note  as  true.  4 

The  indictment  was  framed  under  the  36th  section  of  the  3d 


472 


DECISIONS  IN  CRIMLXAL  CASES. 


Dennis  v.  The  People. 


title,  part  4  of  the  Revised  Statutes  in  relation  to  the- crime  of 
forgery.  (2  R.  S.  674.)  On  the  trial  a  witness  was  asked  the 
following  question,  "Is  there  such  an  institution  doing  business 
in  the  state  of  New  York  as  a  banking  institution,*as  the  Bank 
of  Lowville."  This  question  was  objected  to  by  the  prisoner's 
counsel,  on  the  ground  that  parol  proof  could  not  be  given  of 
that  fact,  and  that  the  prosecution  should  produce  the  arti- 
cles of  association  of  the  institution  for  that  purpose.  The 
court  overruled  the  objection,  and  the  prisoner's  counsel 
excepted.  The  witness  answered  that  there  was  such  an  insti- 
tution doing  business  at  Lowville,  Lewis  County;  that  he  had 
been  in  the  banking  house  and  done  business  with  them.  The 
jury  found  the  defendant  guilty. 

On  the  argument  the  counsel  for  the  prisoner  insisted  that 
under  the  plea  of  not  guilty  to  an  indictment  of  this  description, 
the  prosecution  were  bound  to  prove  as  much  as  would  be 
required  in  an  action  at  law  under  a  plea  of  nul  tiel  corpora- 
tion. No  authority  was  cited  for  the  proposition,  nor  can  I 
find  any  adjudged  case  in  which  this  doctrine  is  held,  and  it  is 
safe  to  conclude  that  no  such  strictness  is  required. 

In  the  case  of  The  People  v.  Davis,  (21  Wend.  309,)  the  in- 
dictment was  in  the  same  form  with  the  one  in  the  case  at  bar, 
charging  the  prisoner  with  having  in  his  possession  with  intent 
to  utter,  a  note  purporting  to  have  been  issued  by  the  Morris 
Canal  and  Banking  Company,  duly  authorized  for  that  purpose 
by  the  laws  ol  the  state  of  New  Jersey.  On  the  trial,  the  coun- 
sel for  the  prisoner  requested  the  Recorder  to  charge  that  the 
averment  that  the  company  was  duly  authorized  by  the  laws 
of  New  Jersey  must  be  proved  by  legal  evidence  of  the  act  of 
incorporation,  and  such  proof  not  having  been  given,  the  pri- 
soner was  entitled  to  an  acquittal.  The  Recorder  declined  so  to 
charge,  but  instructed  the  jury  that  it  was  enough  that  proof 
should  be  given  to  satisfy  them  of  the  existence  of  such  an 
institution.  On  writ  of  error,  the  Supreme  Court  held  the  ruling 
to  be  correct,  Nelson,  Ch.  J.,  saying  that  even  "  construing 
the  phrase  purporting  to  be  issued  by  a  bank  lawfully  authorized 
for  that  purpose  in  its  strictest  sense,  still  the  kind  or  degree  of 


OSWEGO,  APRIL,   1854.  473 

Dennis  v.  The  People. 

• 
proof  is  not  prescribed,  and  the  fact  is  left  to  be  proved  in  the 

ordinary  way,  under  which  as  heretofore  practiced  in  like  cases, 
the  best  evidence  that  might  be  furnished  is  not  required."  The 
conviction  in  that  case  was  held  to  be  right,  and  the  principle 
established  seems  to  me  clearly  to  authorize  the  proof  given, 
and  the  conviction  which  followed  in  the  present  case. 

The  case  of  People  v.  Peabody,  (25  Wend.  472,)  was  cited 
by  the.  counsel  for  the  prisoner  as  an  a-uthority  which  held  that 
the  existence  of  the  bank  could  only  be  proved  by  the  intro- 
duction of  a  certified  copy  of  the  articles  of  the  association,  and 
that  such  are  the  only  competent  proof.  It  is  true  that  in  t^iat 
case  such  proof  was  given,  but  it  is  to  be  noted  that  in  that 
case  the  Bank  of  Warsaw  had  never  commenced  operation,  nor 
issued  any  bills.  In  this  case  the  question  was  whether  there 
was  such  an  institution  doing  business  as  the  Bank  of  Lowville 
and  that  fact  it  was  competent  to  prove  in  the  manner  and  by 
the  proof  given  in  this  case.  It  is  not  said  in  The  People  v. 
Peabody  that  the  production  of  the  articles  is  the  only  compe- 
tent proof  in  all  cases  where  the  existence  of  a  banking  insti- 
tution doing  business  is  in  question,  and  the  principle  of  The 
People  v.  Davis  is  expressly  recognized  and  reaffirmed.  We 
do  not  see  that  any  error  was  committed  by  the  Oyer  and 
Terminer  in  this  case,  and  the  proceedings  are  remitted  to  that 
court  with  directions  to  proceed,  and  render  judgment. 

Proceedings  affirmed. 

VOL.  I  60 


DECISIONS  IN  CRIMINAL  CASES 


SUPREME  COURT.     Saratoga  General  Term,  May,  1854.     Hand. 
Cady  and  Mien,  Justices. 

» . 

SAFFORD,  pl'ff  in  error  vs.  THE  PEOPLE  def'ts  in  error. 

A  writ  of  error,  for  the  purpose  of  reviewing  a  final  judgment  of  the  court  of 
Oyer  and  Terminer,  is  a  writ  of  right  and  brings  before  the  Supreme  Court 
the  bill  of  exceptions  with  the  transcript  of  the  record. 

In  all  cases  of  felony,  before  the  passing  of  sentence,  the  court  should  demand 
from  the  defendant  what  he  has  to  say  why  judgment  should  not  be  pro- 
nounced against  him:  and  the  fact  that  the  defendant  was  present  and  that 
such  demand  was  made,  ought  to  appear  upon  the  record. 

On  an  indictment  under  the  "act  to  punish  seduction  as  a  crime"  passed  in 
1848,  the  defendant  may  show  that  the  prosecutrix  was  not  of  "previous 
chaste  character"  either  by  proving  an  actual  want  of  chastity  on  her  part, 
or  by  showing  her  general  bad  reputation  for  chastity.  Per  HAND,  J.  (a) 

Where  the  illicit  intercourse,  between  the  prosecutrix  and  the  defendant,  began 
4  or  5  years  before  the  finding  of  the  indictment,  and  continued  until  within 
two  years,  it  was  held  not  to  be  a  case  of  seduction  within  two  years  pre- 
vious to  the  finding  of  the  indictment,  and  not  to  be  within  the  statute. 

Exceptions  may  now  be  taken  on  the  trial  of  a  criminal  cause,  in  the  same 
cases  and  manner  provided  by  law  in  civil  cases. 

It  seems,  that  the  jury  are  no  more  judges  of  the  law  in  criminal  then  in  civil 
cases. (b) 

Writ  of  error  to  the  St.  Lawrence  Oyer  and  Terminer.  The 
prisoner  was  indicted,  tried,  convicted  and  sentenced  to  the 
state  prison,  under  the  "  act  to  punish  seduction  as  a  crime." 
[Laws  of  1848,  ch.  111.)  The  indictment  was  found  in  Feb- 
ruary, 1853;  the  prisoner  arraigned  in  June,  1853,  and  tried  in 
October,  1853 — Mr.  Justice  Cady  presiding.  The  prosecuting 
witness  testified,  that  she  and  the  prisoner  had  lived  in  the 
same  neighborhood  from  their  childhood  and  were  very  intimate; 
their  parents  residing  near  each  other,  and  their  brothers  and 
sisters  having  intermarried.  That  the  prisoner  had  sexual  in- 
tercourse with  her  first  in  June,  1851,  before  which  he  had  paid 
his  addresses  to  her,  and  had  promised  to  marry  her.  That  he 
attempted  to  have  connection  with  her  four  or  five  years  before, 

(a)  See  The  people  t>.  Crozier,  page  453. 

(b)  See  The  People  v.  Finnegan,  page  147. 


SARATOGA,  MAY,  1854.  475 

Safford  v.  The  People. 

but  did  not  fully  succeed;  that  he  had  tried  many  times  before 
June,  1851,  but  only  partially  succeeded  a  few  times.  That 
she  had  a  child  by  him,  born  in  March,  1852.  Her  mother 
proved  a  promise  of  marriage  by  the  prisoner.  A  witness  for 
defendant  testified,  that  four  or  five  years  before  the  trial,  she 
saw  the  prisoner  and  prosecuting  witness  go  into  the  bushes 
and  lie  down  together,  he  laying  his  arm  around  her.  Some 
other  testimony  was  given,  not  material  to  the  case  before  the 
court.  The  counsel  for  the  prisoner,  in  summing  up  to  the  jury, 
insisted  that,  if  the  jury  found  from  the  evidence,  that  the  first 
seduction  was  more  than  two  years  before  this  indictment  was 
found,  they  should  acquit,  and  asked  the  court  so  to  charge;  and 
that  if  prior  to  the  sexual  intercourse  in  June,  1851,  the  prose- 
cytrix  was  of  unchaste  character  as  to  the  defendant  or  any 
oth-er  person,  he  was  entitled,  as  matter  of  law,  to  be  acquitted, 
and  asked  the  court  to  so  charge.  The  district  attorney  con- 
tended, that  "  previous  chaste  character/1  in  the  statute,  meant 
chaste  character  as  to  other  persons  than  the  defendant;  and 
that  prior  unchastity,  as  to  the  prisoner,  was  no  defence.  That 
if  he  seduced  her  under  a  promise  of  marriage  more  than  two 
years  before  the  indictment,  and  had  sexual  intercourse  with 
her  afterwards  under  a  promise  of  marriage,  the  several  acts 
were  continuous  and  a  perpetuation  of  the  same  crime  and  he 
oould  not  set  up  as  a  defence  that  he  had  perpetrated  the  same 
offences  before  the  statute  was  passed,  and  that  there  was  no  evi- 
dence of  a  connection  more  than  two  years  before  finding  the 
indictment.  The  court  refused  to  charge  on  the  point,  whether 
an  #ct  of  connection  more  than  two  years  before  finding  the 
indictment  could  operate  as  a  defence  in  law,  but  left  the  ques- 
tion to  the  jury,*  and  the  defendant  excepted.  The  entry  of 
judgment  was  as  follows: 

"  St.  Lawrence  county  Oyerand  Terminer,  October  IS,  1853. 
The  People  v.  Hiram  Safford — Indictment  for  seduction. 

The  above  named  defendant  having  been  heretofore  (to  wit, 
on  the  21st  day  of  June,  1853,)  arraigned  upon  the  above  in- 
diclraent,  and  having  pleaded  not  guilty  thereto,  and  havjng 


476  DECISIONS  IN  CRIMINAL  CASES. 

Safford  v.  The  People. 

been  held  to  bail  for  his  appearance  at  this  court,  and  having 
been  tried  by  a  jury  and  found  guilty;  judgment  having  been 
moved  by  C.  G.  Myers,  Esq.,  district  attorney,  court  did  on  the 
21st  day  of  October,  1853,  sentence  the  said  defendant,  Hiram 
Safford,  to  imprisonment  in  the  Clinton  state  prison,  at  hard 
labor,  for  two  years  six  months."  (Signed  by  the  clerk.) 

W.  G.  Paris,  for  the  prisoner. 
C.  J.  King,  for  the  people. 

By  the  Court.  HAND,  J. — The  objection  that  this  cause  is  not 
properly  before  this  court,  .is  not  valid.  The  court  of  Oyer  and 
Terminer  gave  final  judgment,  and  that  being  a  court  of  record, 
a  writ  of  error  on  the  part  of  the  defendant  was  a  writ  of  right, 
and  took  up  the  bill  of  exceptions  with  the  transcript  of  the 
record.  (2  R  S.  740,  §15;  736,  §21;  Regina  v.  Paty,  2  Salk. 
504.)  The  respective  offices  of  writs  of  error  and  of  certiorari, 
are  quite  well  settled.  (2  Burr.  Cr.  193;  2  Tidd,  1051;  1  id. 
330;  People  v.  Judges  of  Suffolk,  24  Wend.  553;  5  Hill,  269; 

3  id.  42;  1  Ld.  Raymond,  469;  Chitt.  Cr.  L.  747;  1  Paine 
fy  Duer,  84;  2  R.  S.  736,  §  27;  Barb.  Cr.  L.  341.) 

By  the  record,  as  certified  to  us,  it  does  not  appear  that  the 
court  demanded  of  the  defendant  what  he  had  to  say  why  judg- 
ment should  not  be  pronounced  against  him.  This  undoubtedly 
was  necessary;  and,  it  seems,  it  must  appear  by  the  record  to 
have  been  done.  (King  v.  Spike,  3  Salk.  358;  Rex  v.  Geary, 
2  id.  630;  Buncomb's  Case,  3  Mod.  263;  1  Chitt.  Cr.  L.  700; 

4  Bl.  375;  Barb.  Cr.  L.  330;  and  see  Plowd.  387;  Rose.  Cr.  Ev. 
245:  Rex  v.  Ratcliffe,  1  Wils,  150;  King  v.  Garside,  2  A.  &  E. 
266;  2  Toml.  Diet.  295.)    This  not  appearing  upon  the  record 
was  one  of  the  causes  for  which  the  attainder  of  Bascomb 
was  reversed  after  his  death.     In  one  of  our  sister  states,  the 
court  seems  to  have  considered  this  practice  applicable  only  to 
capital  cases.    (West  v.  State,  2  New  Jer.  212.)     And  most  of 
the  cases  above  cited  were  upon  convictions  for  treason,  but  the 
principle  is  the  same;  and  the  reason  stated  in  all  the  books  is, 


SARATOGA,  MAY,   1854.  477 

Safford  v.  Th-  People. 

that  the  prisoner  may  have  a  pardon  to  plead  or  he  may  move 
in  arrest  of  judgment;  and  neither  Chitty  or  Blackstone  make 
any  distinction.  The  former  says,  it  is  indispensably  necessary 
even  in  clergyable  felonies.  The  practice  has  its  foundation  in 
good  sense  and  common  justice,  and  the  principle  certainly  ap- 
plies to  all  cases  of  felony;  and  this  crime  seems  to  have  been 
placed  in  that  grade  by  our  statute.  (2  7?.  S.  702,  §  30;  Car- 
penter v.  Nixon,  5  Hill,  260.)  On  conviction  for  misdemeanors, 
and  especially  when  tried  by  courts  of  special  jurisdiction,  and 
in  which  there  is  no  power  to  arrest  judgment,  perhaps  the  rea- 
son of  the  rule  fails.  It  has  been  said  that  a  copy  of  the  indict- 
ment, bill  of  exceptions  and  judgment  of  the  court  only,  need 
be  returned.  (People  v.  Gray,  25  Wend.  465;  2  R.  S.  740,  §  20; 
758,  §§5,  6.)  The  case  of  The  People  v.  Gray,  was  reversed 
on  another  point,  and  I  can  not  think  that  the  entry  of  judg- 
ment is  perfect  in  case  of  felony,  unless  it  appear  that  the  pri- 
soner was  present  and  had  an  opportunity  to  be  heard  against 
being  sentenced.  In  this  case,  it  does  not  appear  that  he  was 
present  during  the  term  at  which  he  was  tried.  The  omission 
was  probably  from  mere  inadvertence  in  making  the  entry;  and 
as  the  record  is  not  removed,  perhaps  the  court  below  has  the 
power  to  amend,  though  that  is  not  clear.  (1  Chitf.  Cr.  L.  753; 
2  Salk.  632.) 

But  I  think  some  of  the  objections  at  the  trial  were  well  taken 
The  defendant  requested  the  court  to  charge  the  jury,  that  if  the 
first  seduction  (or  connection)  was  more  than  two  years  before 
indictment  found,  they  should  acquit;  and  that  if  prior  to  June, 
1851,  the  prosecutrix  "  was  of  unchaste  character  as  to  the 
defendant  or  any  other  person,  he  was  entitled  as  matter  of 
law"  to  be  acquitted.  The  court  declined  to  charge  upon  the 
point  whether  a  connection  between  the  prosecutrix  and  defend- 
ant more  than  two  years  before  the  indictment,  was  a  defence, 
but  left  the  question  to  the  jury. 

Several  things  are  necessary  to  convict  under  this  act.  (Laws 
of  1848,  ch.  111.)  There  must  be  a  promise  of  marriage,  se- 
duction of  and  illicit  connection  with  an  unmarried  female,  who 
must  have  been  of  "  previous  chaste  character,"  and  the  indict- 


478  DECISIONS  IN  CRIMINAL  CASES. 

Safford  v.  The  People. 

ment  must  be  found  within  two  years  after  the  commission  of 
tte  offence;  and  the  prosecution  can  not  be  sustained  by  the 
testimony  of  the  female  seduced,  unsupported  by  other  evi- 
dence. 

In  this  case,  the  promise  of  marriage  was  proved,  and  proof 
was  given  tending  to  show  carnal  connection  of  the  parties  four 
or  five  years  before  the  trial.  But  I  find  no  evidence  of  the 
seduction  or  illicit  connection  within  two  years  before  the  in- 
dictment, except  that  of  the  prosecuting  witn-ess.  The  statute 
does  not  say  there  must  be  two  witnesses,  as  required  in  case 
of  treason.  But  the  facts  constituting  the  crime  can  not  be 
proved  by  the  seduced  alone:  she  must  be  supported  by  direct 
evidence,  or  proof  of  circumstances,  on  all  the  material  alle- 
gations of  the  indictment  However,  no  point  seems  to  have 
been  taken  on  the  trial  on  this  branch  of  the  case.  But  she 
must  also  have  been  "  of  previous  chaste  character."  In  a  case 
arising  upon  another  statute,  "  an  act  to  punish  abduction  as  a 
crime,"  (Laws  of  1848,  oh.  105,)  it  was  said  to  "mean  actual 
personal  virtue;  that  the  female  must  be  actually  chaste  and 
pure  in  conduct  and  principle  up  to  the  time  of  the  commission 
of  the  offence."  (Carpenter  v.  People,  8  Barb.  60S;  Welles, 
P.J.) 

The  word  "  character"  has  been  variously  used  in  legal 
proceedings;  and  sometimes  denotes  the  personal,  official  or  spe- 
cial character  in  which  a  party  sues,  or  is  sued,  as  executor, 
officer,  &c.,  but  it  more  frequently  refers  to  reputation  or  com- 
mon report.  (1  Cow.  Sf  HiWs  Notes,  460;  1,  768,  and  cases 
there  cited;  Leddy  v.  Tuucey,  2  Wend.  352;  King  v.  Root,  4  id 
113.)  And  is  seldom  used  as  synonymous  with  mere  inclination 
or  propensity,  or  even  secret  habit,  nor  as  descriptive  of  the 
mere  qualities  of  individuals,  only  so  far  as  others  have  formed 
opinions  from  their  conduct.  And  by  the  addition  of  this  word, 
it  would  seem  the  legislature  intended  something  more  than 
mere  impurity  of  mind;  otherwise  the  requirement  would  have 
been  simply  that  the  female  should  be  "  previously  chaste." 
But  the  act  does  not  say  previous  general  chaste  character. 
This  is  a  penal  statute,  creating  a  new  offence,  and  the  accused 


SARATOGA,  MAY,  1854.  479 


Safford  v.  The  People. 


is  not  confined  to  general  reputation.  I  am  not  prepared  to 
say  that  one  secret,  solitary  act  of  illicit  intercourse,  no  matter 
how  long  previous,  nor  under  what  circumstances,  would  be 
such  conclusive  proof  of  unchaste  character,  as  to  prevent  her 
being  the  subject  of  seduction  under  the  statute,  although  it 
would  render  the  female  impure,  and  to  a  degree  unchaste  and 
immoral  in  fact.  But  repetition  of  the  offence  with  different 
persons  must,  necessarily,  more  or  less,  establish  a  character  for 
lewdness  with  some  portion  of  the  community;  and  that  is 
enough  for  the  defence,  especially  as  she  would  be  unchaste  in 
fact.  And  the  result  would  be  the  same  if  such  intercourse  was 
with  an  individual,  and  the  fact  was  known  to  others  or 
believed  by  them.  So  that,  if  the  accused  is  not  confined  to 
general  reputation,  practically,  the  rule  as  above  suggested  and 
that  laid  down  in  Carpenter  v.  People,  would  probably  require 
the  same  proof  and  produce  the  same  result. 

But  I  think  the  defence  is  not  confined  to  cases  of  actual 
incontinency,  but  may  prevail  upon  the  ground  of  reputation 
alone,  and  that  if  the  jury  find  the  female  really  had  the  repu- 
tation of  being  unchaste,  the  case  is  not  within  the  statute. 
The  use  of  the  word  "  character,"  is  important  in  this  respect, 
and  in  such  case  she  does  not  come  within  the  class  described 
in  the  act,  although  illicit  intercourse,  in  fact,  can  not  be 
proved.  However,  notwithstanding  the  phraseology  of  the  law, 
if  the  defence  relies  upon  her  bad  reputation  alone,  to  prevent 
abuse,  it  is  no  more  than  reasonable  that  the  proof  should  show 
prior  general  bad  character  for  chastity,  or  at  least  considerable 
notoriety. 

If  the  illicit  intercourse  began  four  or  five  years  before  the 
indictment  and  had  continued  until  within  two  years,  the  jury 
should  have  found  for  the  defendant,  on  the  question  of  se- 
duction within  two  years.  It  would  be  rather  a  loose  con- 
struction of  the  statute,  to  hold,  that  a  woman  who  had  con- 
tinued in  the  practice  of  fornication  with  a  man  for  four  or  five 
years,  and  up  to  the  time  she  prosecutes,  had  been  seduced 
within  the  last  two  years.  The  counsel  for  the  prosecution,  on 
the  trial,  seems  to  have  supposed  the  commission  of  the  crime 


480  DECISIONS  IN  CRIMINAL  CASES. 

Safford  w.  The  People. 

might  be  charged,  as  it  were,  with  a  continuance  for  several 
years,  or  that  each  occasion  was  a  first  seduction.  A  nuisance 
may  be  stated  as  continuing,  it  seems.  (Arch.  Cr.  PI.  36.) 
And  in  crim.  con.,  the  injury  may  be  stated  to  have  been  com- 
mitted on  divers  days  and  times.  But  seduction  and  the  act  of 
illicit  intercourse,  under  certain  circumstances,  complete  the 
crime,  and  such  a  construction  is  hardly  within  the  spirit  of  the 
act,  which  was  not  intended  to  punish  illicit  cohabitation,  but 
the  seduction  of  a  virtuous  female  under  a  promise  of  marriage. 

Proof  was  adduced  to  show  intercourse  four  or  five  years 
before  trial,  and  from  the  testimony  of  the  principal  witness,  it 
is  to  be  feared  there  was  very  little  reformation  afterwards. 
The  conduct  of  the  defendant  may  have  been,  and  probably  was, 
cruel  and  dishonorable,  but  he  must  be  legally  convicted  before 
he  can  be  punished. 

The  defendant,  though  a  different  practice  formerly  prevailed, 
(2  Russ.  on  Cr.  725,  §6;  ex  parte  Barker,  7  Cow.  143;  and  see 
People  v.  Comstock,  8  Wend.  549,)  now  may  take  exceptions, 
"  in  the  same  cases  and  manner  provided  by  law  in  civil  cases," 
(2  R.  S.  736,  §21,)  and  the  better  opinion  seems  to  be,  that 
the  jury  are  no  more  judges  of  the  law  in  criminal  than  in  civil 
cases,  except  that  a  verdict  of  acquittal  is  conclusive.  (Whart. 
Cr.  Tr.  886,  893,  and  cases  there  cited;  People  v.  Pine,  2  Barb. 
566;  Carpenter  v.  People,  supra;  Cow.  Sf  Hill's  Notes,  150,  §  1.) 
However  this  may  be,  when  requested,  the  judge  should  instruct 
the  jury  upon  a  question  of  law  fairly  arising  in  the  case. 
(People  v.  Gray,  5  Wend.  289;  Vallance  v.  King,  3  Barb.  548; 
1  Burr.  Pr.  456.)  The  judgment  should  be  reversed. 

The  judgment  was  reversed,  and  the  prisoner  ordered  to  be 
discharged. 


CAYT7GA,  JUNE,  1854.  49  ^ 


SUPREME  COURT      Cayuga  General  Term,  June,  1854.     Welles, 
Selden  and  Johnson,  Justices. 

THOMAS  J.  REED,  pl'ff  in  error  vs.  THE  PEOPLE  def'ts  in  error. 

Two  distinct  offences,  requiring  different  punishments,  can  not  be  alleged  in 
the  same  count  of  an  indictment:  such  an  indictment  is  bad  for  duplicity 
and  a  conviction  upon  it  will  be  reversed  on  error. 

Where,  in  the  same  count  of  an  indictment,  the  defendant  was  charged  with  a 
common  law  nuisance  and  also  with  a  violation  of  a  regulation  of  a  board  of 
health,  under  the  fourth  section  of  the  "  act  for  the  preservation  of  the  pub- 
lic health,"  passed  April  10,  1850,  the  count  was  adjudged  to  be  double,  the 
former  offence  being  punishable  by  fine  not  exceeding  $250,  or  imprisonment 
not  exceeding  one  year,  or  both,  (2  R.  S.  697,  $$40,  41;)andthe  latter  being 
punishable  by  fine  not  exceeding  SLOOO  or  imprisonment  not  exceeding  two 
years,  or  both.  Sess.  Laws  of  1850,  p.  692,  Sec.  4.) 

What  allegations  in  an  indictment  are  sufficient  to  charge  a  common  law 
nuisance  considered. 

It  is  only  where  a  regulation  of  a  board  of  health  has  been  made  and  published, 
that  a  person  can  be  convicted,  under  the  4th  section  of  the  act,  of  a  mis- 
demeanor, for  its  violation. 

An  order  of  a  board  of  health  made  ex  parte  and  adjudging  certain  premises 
to  be  a  common  nuisance  and  directing  the  cleansing  and  purification  of  the 
same,  within  three  days  after  the  service  of  notice  of  such  order,  is  not  such 
a  regulation  as  is  contemplated  by  the  fourth  section  of  the  statute,  and  a 
failure  to  comply  with  such  order  does  not  subject  the  person  offending  to 
punishment  for  a  misdemeanor,  under  the  section  aforesaid. 

On  the  trial  of  an  indictment  for  the  violation  of  such  an  order,  it  is  not  com- 
petent for  the  prosecution  to  prove  affirmative  offensive  acts  on  the  part  of 
the  defendant,  while  engaged  in  removing  the  cause  of  the  nu;«ance.  But  it 
is  competent  for  the  defendant  on  such  trial,  to  show  a  bona  fid*  attempt  on 
his  part,  to  obey  the  order  in  question. 

On  such  trial,  it  is  a  defence  to  such  indictment  to  prove  that  at  the  time  r.f 
the  making  and  service  of  the  order,  the  defendant  resided  out  of  the  bounds 
of  the  village  corporation,  in  which  such  board  of  health  was  organized. 

Writ  of  error  to  the  Court  of  Sessions  of  Orleans  county 
The  plaintiff  in  error  was  indicted  at  the  Court  of  Oyer  and 
Terminer  held  in  said  county  in  the  month  of  September,  1852, 
for  disobeying  an  order  of  the  board  of  health  of  the  village  of 
Albion  in  said  county  of  Orleans.  The  indictment  was  sent  to 
the  Court  of  Sessions  for  trial,  where  the  defendant  was  tried 

VOL.  I.  61 


482  DECISIONS  IX  CRIMINAL  CASES. 

Reed  v.  The  People. 

and  convicted  in  the  month  of  April,  1854,  and   adjudged  tc 
pay  a  fine  of  $800,  and  stand  committed  until  the  fine  was  paid- 
The   indictment  contained  two  counts,   the  first   of  which 
stated  that  on  the  5th  day  of  June,  1853,  "  the  village  of  Albion, 
being  an  incorporated  village,  under  and  by  virtue  of  the  laws 
of  the  state  of  New  York,  the  trustees  of  said  village  in  pur- 
suance-of  an  act  of  said  state,  entitled  '  an  act  for  the  preserva- 
tion of  the  public   health,'  passed  April    10,    1850,   appointed 
one  Nelson  A.  Graves,  Rice  Warner,  and  John  Hubbard  to  be 
and  constitute  a  board  of  health   in   and  for  said  village  (the 
(hen  ensuing  year)  and  a  competent  physician  to  be  the  health 
officer  thereof.     That  at  the  time  aforesaid,  and  for  a  long  time 
previous,  one  Thomas  J.  Reed  was  the  owner  and  occupant  of 
certain  premises  situated  on  the  east  side  of  Batavia  street  in  said 
village  and  in  said  county  of  Orleans;  that  upon  said  premises 
so  owned  and  occupied  by  the  said  Reed,  then  and  for  a  long 
time  previous  had  been   and  still  are  ditches  drains  and  low 
places,  filled' with  standing,  stagnant,  filthy  and  unwholsome 
water;    large  quantities  of  animal  and  vegetable  substances 
decaying;  pig  pens  and  barns   containing  and  surrounded  by 
manure,  mud  and  filth;  and  a  privy  with  the  vault  thereof  full 
of  manure,  human  deposits  and  filth;  and  the  building  part  of 
said  privy  containing  divers  quantities  of  manure  and  filthy 
excrements;  all  of  which  were  suffered  and  permitted  to  be  and 
remain  upon  the  said  premises  by  Thomas  J.  Heed,  he  having 
full  knowledge  of  the  situation  thereof,  and  well  knowing  that 
from  said  causes  an  offensive  and  noisome  smell  arose  and  made 
the  air  unwholesome  and  dangerous  to  the  public  health.     That 
on  the  seventh   day  01*  July,  1852,  the  said  premises  being   as 
aforesaid,  the  said  several  persons,  so  appointed  as  a  board  of, 
health,  in  and  for  the  said  village,  and    having  duly  qualified 
and  become  charged  with  the  duties   and  vested  with  all  the 
powers  of  boards  of  health,  created  and  appointed  under  and  by 
virtue  of  said  statute,  did  meet  together;  and  having  examined 
and  deliberated  upon  said  premises  so  owned  and  occupied  by 
the    said    Thomas  J.  Reed,  as   aforesaid  made  the    order  and 
adjudication  upon  and  concerning  the  said  premises,  as  follows, 


CAYUGA,  JUNE,  1854.  433 

Reed  v.  The  People. 

that  is  to  say:  *  July  7th,  1852,  Albion,  Orleans  co.,  N.  Y., 
Board  of  health  of  the  village  of  Albion,  met  at  the  office  of 
Curtis  and  Graves,  in  the  court  house  in  said  village.  Present 
John  Hubbard,  Rice  Warner  and  N.  A.  Graves. 

Rice  Warner,  President. 

N.  A.  Graves,  Sec'ry.' 

*  It  is  adjudged  by  said  board  of  health,  after  examination, 
that  the  premises  of  Thomas  J.  Reed  on  which  his  store  is 
situated  in  said  village  is  a  common  and  public  nuisance,  and 
dangerous  to  the  health  and  lives  of  the  inhabitants  of  said 
village,  and  that  the  same  ought  to  be  abated.  Therefore  it  is 
enacted  that  the  filthy  or  stagnant  water,  animal  or  vegetable 
substance,  in  and  about  the  drains,  ditches  or  low  places  on 
said  premises,  and  also  the  manure,  fetid  matter  and  filth  on 
the  north  and  east  sides  of  the  barn  on  said  premises  be 
removed,  covered  up  or  otherwise  disposed  of;  and  also  that 
the  pig  pens  be  removed  from  said  premises,  and  also  that  the 
manure  be  removed  from  the  privy  on  said  premises,  said  privy 
cleansed,  the  old  vault  with  its  contents  covered  up,  a  new 
vault  dug  therefor,  and  the  said  privy  placed  thereon,  and  a 
sufficient  quantity  of  unslacked  or  chloride  of  lime  be  strewed 
upon  all  such  places  to  cleanse  and  purify  the  same,  and  keep 
them  in  such  condition.  And  it  is  further  ordered  that  a  copy 
of  the  aforesaid  regulations  adopted  by  the  same  board,  together 
with  a  notice  or  order  requiring  said  Thomas  J.  Reed  to  abate 
or  remove  said  nuisance  as  specified  in  the  foregoing  enact- 
ments be  served  on  said  Reed,  and  that  he  have  three  days 
after  service  of  said  notice  to  abate  or  remove  said  nuisance. 
July  7,  1852. 

N.  A.  Graves, 
Rice  Warner, 
John  Hubbard, 
Board  of  Health  of  the  Village  of  Albion, 

Orleans  County. 

N.  A.  Grates,  Secretary.' 


484 


DECISIONS  IN  CRIMINAL  CASES. 


Reed  v.  The  People. 


As  by  the  record  of  said  order  and  adjudication  will  more 
fully  appear.  That  afterwards,  to  wit:  on  the  tenth  day  of 
July,  1852,  at  the  said  village  of  Albion,  the  said  board  of 
health  caused  a  copy  of  the  aforesaid  regulations  adopted  by 
said  board,  together  with  a  notice  or  order  requiring  the  said 
Thomas  J.  Reed  to  remove  or  abate  said  nuisance  as  specified 
in  the  aforesaid  enactment  to  be  personally  served  upon  said 
Reed;  that  the  said  Thomas  J.  Reed  having  knowledge  of  the 
aforesaid  order  and  regulations  of  the  said  board  of  health,  it 
became  and  was  the  duty  of  the  said  Reed  within  three  days 
after  said  notice  and  knowledge  to  remove  the  said  filth  and 
foetid  matter  found  about  said  barn;  to  remove  the  said  pig  pen 
from  said  premises;  to  remove  or  cover  up  said  standing  and 
stagnant  water,  and  cover  the  said  places  with  lime,  as  required 
by  said  order,  and  to  take  away  or  cover  up  the  said  animnl 
and  vegetable  substance,  being  and  decaying  thereon  as  afore- 
said; and  also  to  remove  the  manure  from  the  said  privy,  and 
to  cleanse  the  said  privy,  and  to  cover  up  the  old  vault  to  said 
privy  with  its  contents,  and  to  dig  a  new  vault  for  the  same, 
and  to  place  the  said  privy  thereon.  But  the  said  Thomas 
J.  Reed,  well  knowing  the  premises,  and  willfully  and  mali- 
ciously intending  to  violate  the  said  order  and  regulation  of  the 
said  board  of  health,  did  not  nor  would  within  three  days  after 
said  notice,  nor  at  any  other  time  remove  the  said  filth  and  fetid 
matter  from  about  the  sides  of  said  barn,  nor  the  pig  pen  from 
said  premises,  nor  the  said  standing  and  stagnant  water,  nor 
did  he  sprinkle  lime  on  said  places,  nor  cover  up  or  otherwise 
dispose  of  the  same,  nor  did  he  remove,  cover  up  or  otherwise 
dispose  of  said  animal  and  vegetable  substances,  nor  did  he 
remove  the  manure  from  said  privy  or  cleanse  said  privy,  nor 
cover  up  the  old  vault  to  said  privy,  and  •  the  said  contents 
thereof,  or  dig  a  new  vault  or  place  said  privy  thereon,  but  to 
do  the  same  or  any  part  of  the  said  several  things  and  matters 
as  required  by  said  order  and  notice,  willfully  and  maliciously 
wholly  neglected  and  refused  so  to  do:  and  afterwards  to  wit, 
on  the  10th  day  of  August,  1852,  the  said  Thomas  J.  Reed, 
having  full  knowledge  of  the  said  order  so  made  by  the  said 


CAYUGA,  JUNE,  1854.  435 


Reed  t.  The  People. 


board  of  health,  and  full  knowledge  of  the  premises  as  afore- 
said, then  and  there  willfully  and  maliciously  took  a  large 
quantity  of  the  filth,  excrements  and  contents  from  said  old 
vault  to  said  privy,  and  scattering  the  same  upon  the  ground 
in  and  about  said  privy  on  said  premises;  willfully  and 
maliciously  took  divers  other  quantities  of  the  same  into 
Batavia  street  in  said  village  and  thence  in  a  southerly  direc- 
tion to  State  street,  knowingly  and  willfully  scattering  the 
same  along  said  Batavia  street  to  said  State  street,  and 
from  thence  east  along  said  State  street,  scattering  the  same 
along  the  said  street  in  divers  large  quantities,  willfully 
and  maliciously  intending  thereby  to  make  and  create  a 
noisome  and  direful  stench,  offensive  and  dangerous  to  all  the 
good  people;  and  the  said  Thomas  J.  Reed  did  thereby  make 
and  create  a  noisome,  offensive  and  direful  stench,  by  means 
whereof  and  of  the  said  premises,  divers  persons  became  and 
were  grievously  sick  and  distempered  in  their  bodies,  and  in 
great  danger  of  losing  their  lives,  to  the  great  damage  of  the 
said  persons,  against  the  peace  of  the  people  of  the  state  of  New 
York  and  their  dignity. 

There  was  another  count  in  the  indictment,  but  as  the  de- 
fendant was  convicted  on  the  first  only,  it  is  not  necessary  to 
notice  the  second. 

At  the  trial,  after  the  jury  were  empanneled,  and  before  any 
evidence  was  given,  the  defendants'  counsel  moved  the  court  to 
quash  the  indictment  on  various  grounds,  which  motion  was 
denied. 

The  counsel  for  the  people  then  gave  evidence  of  the  ap- 
pointment and  organization  of  the  board  of  health,  the  making 
of  the  order  and  adjudication  set  forth  in  the  first  count,  as 
above,  also  evidence  tending  to  show  that  a  copy  of  said  order 
was  a  few  days  afterwards  sent  to  the  defendant,  and  that  the 
same  came  to  his  hands.  That  at  the  time  of  making  said  or- 
der and  of  the  service  thereof  upon  the  defendant,  he  resided 
upon  his  farm  about  a  mile  and  a  half  from  the  said  village  of 
Albion.  Also,  that  the  defendant  had  failed  to  comply  with 
its  requirements  for  more  than  three  days  after  the  service  of 


486 


DECISIONS  IN  CRIMINAL  CASES. 


Reed  v.  The  People. 


the  copy  of  said  order  upon  him.  In  the  course  of  the  trial  a 
witness  for  the  people  was  asked  by  the  counsel  for  the  prose- 
cution the  following  question:  "  Do  you  know  any  thing  about 
the  defendant's  taking  the  contents  of  the  privy  and  scattering 
them  about  the  premises  and  the  street  on  or  about  the  10th  of 
August,  1852?"  to  which  the  defendant's  counsel  objected  on 
the  ground  of  irrelevancy  and  immateriality.  Also,  that  if  the 
defendant  created  a  nuisance  subsequent  to  the  order  he  was 
liable  to  another  indictment  therefor,  but  was  not  liable  under 
this.  The  court  overruled  the  objection  and  the  defendant's 
counsel  excepted.  The  bill  of  exceptions  then  continues  as 
follows:  "  Witness  answered  that  on  the  llth  of  August  last, 
about  8  o'clock  P.  M.,  he  saw  the  said  back  house  tipped  up 
and  the  defendant  standing  on  the  edge  of  the  vault  with  a  pail 
in  his  hands  in  the  attitude  of  dipping  the  contents  of  the  vault 
into  a  wagon  standing  there;  saw  some  of  the  contents  scattered 
around  near  where  the  wagon  stood  Question  by  counsel  for 
the  people:  Did  you  see  it  scattered  along  the  streets?  to  which 
the  defendant's  counsel  objected  on  the  same  grounds.  The  court 
overruled  the  objection  and  the  counsel  for  the  defendant  then 
arid  there  excepted.  Witness  answered  that  he  saw  some  of  the 
same  material  in  front  of  defendant's  premises  in  Batavia  street, 
two  feet  square  where  the  wagon  moved  through  the  ditch. 
Q.  Did  you  observe  any  stench  from  the  contents  on  the  ground 
and  in  the  street?  To  which  the  defendant's  counsel  objected  on 
the  same  grounds.  The  court  overruled  the  objection  and  the 
counsel  for  the  defendant  then  and  there  excepted,  and  the 
witness  answered  that  he  did,  very  bad. 

Norton  Z.  Sheldon  being  called  and  sworn  as  a  witness  for 
the  people,  testified  that  he  resided  in  Albion  and  remembered 
the  circumstance  of  defendant's  removing  the  contents  of  the 
privy.  The  defendant's  counsel  thereupon  objected  to  the  pro- 
secutor showing  any  matter  tending  to  prove  a  nuisance  created 
by  defendant  in  the  streets  of  Albion  subsequent  to  the  order 
of  the  board.  The  court  overruled  the  objection  and  the  counsel 
for  the  defendant  then  and  there  excepted.  The  bill  of  ex- 
ceptions then  states  that  this  and  several  other  witnesses  gave 


CAYUGA,  JUNE,  1854.  437 


Reed  v.  The  People. 


evidence  tending  to  show  that  after  the  date  of  the  said  order, 
the  contents  of  the  said  privy  had  been  scattered  through  and 
along  the  streets  of  the  village,  producing  an  offensive  smell 
and  causing  sickness  to  some  of  the  inhabitants. 

After  the  prosecution  had  rested,  the  defendant  introduced 
evidence  tending  to  show,  among  other  things,  that  the  pre- 
mises in  question  were  occupied  by  his  tenants,  at,  before  and 
after  the  making  the  order,  and  that  the  nuisance  was  created 
and  maintained  by  them.  That  the  defendant  removed  from 
a  portion  of  said  premises  on  or  about  the  17th  day  of  June, 
1852.  with  his  family  to  his  farm  a  mile  and  a  half  off  from 
the  corporation  of  the  village  of  Albion,  where  he  has  since 
resided. 

A  witness  sworn  on  the  part  of  the  defendant,  testified  that 
he  lived  in  one  of  the  small  houses  on  the  premises  in  question, 
in  Albion,  in  the  year  1852. 

Question  by  the  defendant's  counsel:  What  direction,  if  any, 
did  the  defendant  give  you  about  cleaning  up  the  premises  in 
question  in  July  and  August  last?  To  which  the  counsel  for  the 
people  objected.  The  court  sustained  the  objection,  and  the 
defenda  t's  eounsel  then  and  there  excepted. 

Question  by  the  defendant's  counsel:  Did  the  defendant 
give  you  any  directions  about  cleaning  up  the  premises  in 
those  months?  Objection  and  decision  as  above,  and  defendant's 
counsel  excepted. 

After  the  evidence  was  closed  the  court  charged  the  jury, 
among  other  things,  that  the  defendant  was  not  directly  in- 
dicted for  taking  the  contents  out  of  the  privy,  and  thereby 
making  a  nuisance,  and  could  not  be  convicted  for  that  alone; 
but  the  evidence  upon  that  subject  was  proper  to  be  considered 
by  them  on  the  question  whether  he  violated  the  order  of  the 
7th  of  July,  and  whether  he  did  it  willfully  and 'perhaps  as 
matter  of  aggravation  for  the  court  to  consider. 

The  defendant's  counsel  requested  the  court  to  charge  the 
jury  as  follows: 

I.  That  if  they  should  find  under  the  evidence  that  the  nuis- 
ance was  created  and  maintained  by  other  persons,  and  not  the 


438  DECISIONS  IN  CRIMINAL  CASES. 

Reed  «.  The  People. 

defendant,  at  the  time  charged  in  the  indictment,  notwith- 
standing the  board  of  health  ordered  him  to  remove  it,  they 
must  find  the  defendant  not  guilty.  The  court  refused  so  to 
charge,  but  then  and  there  charged  the  jury  in  that  behalf,  that 
if  they  should  find  that  other  persons  than  the  defendant  con- 
tinued the  nuisance  after  the  order  of  the  board  of  health  with- 
out the  fault  of  the  defendant,  they  should  find  the  defendant 
not  guilty,  to  which  charge  and  refusal  to  charge  the  defend- 
ant's counsel  then  and  there  excepted. 

II.  That  if  the  jury  should  find  that  the  defendant  at  the  time 
of  making  and  serving  the  order,  resided  out  of  the  corporation 
of  the  village  of  Albion,  and  that  the  notice  or  order  was  served 
on  him  out  of  said  corporation,  they  should  acquit  the  defend- 
ant. The  court  refused  so  to  charge,  but  then  and  there  charged 
the  jury,  that  if  they  should  find  that  the  defendant  at  the  time 
the  order  was  made  resided  out  of  the  village,  and  continued  to 
reside  out  of  said  village,  and  had  no  control  of  said  premises, 
they  should  acquit  him;  to  which  refusal  and  charge,  the  de- 
fendant's counsel  then  and  there  excepted. 

The  jury  convicted  the  defendant  under  the  first  count  of  the 
said  indictment,  (the  court  charging  them  that  no  evidence  had 
been  given  under  the  last  count,  and  that  said  last  count  was 
excluded  from  their  consideration.) 

Various  other  questions  arose  in  the  course  of  the  trial,  and 
various  other  exceptions  by  the  defendant's  counsel  were  taken 
to  rulings  of  the  court,  but  they  are  deemed  unnecessary  to  be 
here  stated. 

H.  D.  Tucker,  for  the  plaintiff  in  error. 
W.  K.  McJllister,  for  defendants  in  error. 

By  the  Court,  WELLES,  J. — The  judgment  of  the  court  below 
must  be  reversed,  for  the  following  reasons: 

I,  The  indictment  is  bad  for  duplicity;  it  charges  the  de- 
fendant with  two  distinct  offences — one,  a  common  law  nuis- 
ance punishable  by  fine  not  exceeding  $250,  or  imprisonment 


CAYUGA,  JUNE,  1854. 


Reed  p.  The  People. 


not  exceeding  one  year,  or  both  such  fine  and  imprisonment. 
(2  R.  S.  4  ed.  88,  §§  55,  56;  1  ed.  2  vol.  697,  §§  40,  41.)  The 
other,  for  violating  the  order  of  the  board  of  health,  involving 
punishment  by  fine  not  exceeding  $1000,  or  imprisonment  not 
exceeding  two  years,  or  both.  (1  R.  S.  4  ed.  853,  §  15;  Sess. 
L.  of  J850,  ch.  324,  §  4.) 

This  objection  is  not  aided  by  the  verdict,  nor  the  defect 
cured  by  the  statute  of  jeo fails.  (  The,  People  v.  Wright,  9  Wend. 
R.  196,  and  authorities  there  cited.) 

It  was  contended  on  the  argument  by  the  counsel  for  the 
people,  that,  in  truth,  the  count  in  question  was  not  double; 
that  all  it  says  about  the  conduct  of  the  defendant  after  the 
order  of  the  board  of  health  was  made,  in  scattering  the  filth, 
&c.,  does  not  amount  to  a  nuisance,  because  not  alleged  to  have 
been  "  to  the  common  nuisance  of  all  the  good  people,"  &c.,  and 
jnay  be  treated  as  surplusage.  The  affirmative  acts  of  the  de- 
fendant are  charged  to  have  been  done  willfully,  with  intention 
to  make  and  create  a  noisome  and  direful  stench,  offensive  and 
dangerous  to  all  the  good  people,  and  that  the  defendant  did 
thereby  make  and  create  a  noisome,  offensive  and  direful  stench; 
by  means  whereof  and  of  the  premises,  divers  persons  became 
and  were  grievously  sick,  &c.  The  allegations  contain  the 
essential  elements  of  a  nuisance,  and  all  that  is  wanting  is  the 
name.  It  is  not  necessary  to  decide  whether  this  omission 
would  be  a  fatal  objection  to  the  count,  as  for  a  nuisance,  for. 
in  the  view  in  which  we  are  considering  the  question,  it  does 
not  lie  with  the  people  to  raise  it.  If  it  were  not  so,  it  would 
follow,  that  if  that  part  of  the  count  charging  a  violation  of  the 
order  of  the  board  of  health,  was  also  defective  in  any  respect, 
or,  if  the  public  prosecutor  should  attempt  to  set  out  two  dis- 
tinct offences  in  one  count,  which  could  not  legally  be  joined, 
and  neither  was  sufficiently  stated,  by  the  same  rule,  the  ob- 
jection of  duplicity  could  not  be  made  in  either  case.  But  a 
more  substantial  answer  is,  that  in  a  case  where  one  of  the  two 
offences  is  well,  and  the  other,  defectively  stated,  and  a  general 
conviction  on  the  count,  where  the  evidence  would  well  war- 
rant the  verdict  in  respect  to  the  lesser  crime,  but  in  regard  to 
VOL.  I.  62 


490  DECISIONS  IN  CRIMINAL  CASES. 

Reed  v.  The  People. 

the  other,  the  court,  at  the  trial,  would  have  been  justified  in 
directing  an  acquittal,  the  party  accused  would  be  liable  to  be 
punished  for  an  offence  of  which,  but  for  the  improper  joinder, 
he  would  have  been  acquitted. 

II.  That  portion  of  the  count  upon  which  the  defendant  was 
convicted,  which  charges  a  violation  of  the  order  of  the  board 
of  health,  and  upon  which  the  court  below  rendered  judgment 
is  clearly  bad.  The  third  section  of  the  "  act  for  the  pre- 
servation of  the  public  health,"  (Sess.  L.  0/1850,  ch.  324,) 
prescribes  the  powers  and  duties  of  the  several  boards  of  health 
organized  at  the  time  of  the  passage  of  the  act,  in  any  city  or 
village  in  the  state,  and  of  those  constituted  under  the  act.  By 
subdivision  three  of  that  section,  they  are  "  to  make  regulations 
in  their  discretion  concerning  the  place  and  mode  of  quarantine, 
the  examination  and  purification  of  vessels,  boats  and  other 
craft  not  under  quarantine;  the  treatment  of  articles  or  persons 
thereof,  the  regulation  of  intercourse  with  infected  places,  the 
apprehension,  separation  and  treatment  of  emigrants  and  other 
persons,  who  shall  have  been  exposed  to  any  infectious  or  con- 
tagious disease;  the  suppression  and  removal  of  nuisances,  and 
all  such  other  regulations  as  they  shall  think  necessary  and 
proper  for  the  preservation  of  the  public  health.  The  sixth 
subdivision  makes  it  their  duty  "  to  publish  from  time  to  time 
all  such  regulations  as  they  shall  have  made  in  such  manner  as 
to  secure  early  and  full  publicity  thereto."  The  fourth  section 
of  the  act  is  in  the  following  words:  "  Every  person  who  shall 
willfully  violate  any  regulation,  so  made  and  published,  by  any 
such  board  of  health,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof,  shall  be  subject  to  fine  and  imprison- 
ment, or  both,  in  the  discretion  of  the  court,  such  fine  not 
to  exceed  one  thousand  dollars,  nor  such  imprisonment  two 
years." 

The  order  set  forth  in  the  first  count  of  the  indictment  was 
not  such  a  regulation,  within  the  meaning  of  the  act,  as  to 
make  the  disobedience  of  it  by  the  defendant  a  misdemeanor. 
It  was  an  ex  parte  adjudication  or  sentence  in  regard  to  a  par- 
ticular locality,  and  requiring  of  the  defendant  the  performance 


CAYUGA,  JUNE,  1854.  49  j 


Reed  v.  The  People. 


of  a  series  of  acts.  The  board  of  health  probably  had  the  power 
to  adjudge  and  declare  the  premises  a  nuisance,  and  to  procure 
it  to  be  abated.  The  eighth  subdivision  of  the  fourth  section 
gives  them  all  needful  facilities  for  so  doing,  and  the  fifth 
section  of  the  act  makes  the  county  chargeable  for  all  expenses 
except  that  of  the  compensation  to  the  members  of  the  board, 
which  latter  are  chargeable  upon  the  city  or  town.  The  regu- 
lations which  the  boards  of  health  have  power  to  make,  so  as 
to  attach  to  the  violation  of  them  the  penalties  provided  in  the 
fourth  section,  are  to  be  in  the  nature  of  bylaws;  they  are  to  be 
prescribed  and  published,  and  are  to  affect,  generally,  all  per- 
sons within  the  scope  of  their  operation.  The  term  is  to  be 
understood  in  contradistinction  to  a  judgment,  sentence,  decree 
or  order,  and  contemplates  the  exercise  of  a  power,  in  its  cha- 
racter legislative  rather  than  judicial.  The  requirement  to 
publish  them  in  such  manner  as  to  secure  early  and  full  reci- 
procity, shows  clearly  that  they  are  of  this  character.  The 
violation  must  not  only  have  been  willful,  but  committed  after 
the  regulations  have  been  published  in  the  manner  directed. 
No  reason  can  be  assigned  for  giving  eaily  and  full  publicity 
to  an  order  such  as  the  one  made  by  the  board  of  health  in  this 
case;  no  one's  conduct  or  action  was  to  be  affected  by  it,  but 
that  of  the  defendant.  A  notice  was  all  that  could  be  useful 
to  him,  and  so  the  board  regarded  it;  they  directed  personal 
notice  to  be  served  upon  him  after  it  was  made,  but  did  not 
order  it  published.  It  is  impossible,  we  think,  that  the  legis- 
lature could  have  intended  to  confer  upon  these  boards  of  health 
the  power  to  make  an  adjudication  against  an  individual,  preg- 
nant with  such  serious  consequences  as  are  claimed  in  the  pre- 
sent case,  without  notice  and  in  his  absence,  consequences 
involving,  it  may  be,  not  only  a  heavy  pecuniary  penalty,  but 
that  of  perpetual  infamy. 

But  assuming  the  order  in  question  to  have  been  a  regulation, 
within  the  meaning  of  the  act,  a  violation  of  it  is  not  declared 
to  be  a  misdemeanor  unless  committed  after  it  has  been  pub- 
lished. There  is  no  allegation  that  it  was  ever  published 
This  was  a  condition  precedent,  and  there  being  no  averment 


492 


DECISION'S  IN  CRIMINAL  CASES. 


Reed  v.  The  People. 


of  its  having  been  complied  with  by  the  board,  is  a  fatal 
objection  to  the  indictment.  Serving  personal  notice  on  the 
defendant,  was  not  giving  early  and  full  publicity  to  it,  and 
until  it  shall  be  so  published  no  misdemeanor  can  be  predicated 
of  its  disobedience. 

III.  There  were  sereral  errors  committed  by  the  court  below 
upon  the  trial. 

1.  The  evidence    tending   to  show  that  the  defendant  had 
been  guilty  of  creating  a  nuisance  by  scattering  the  contents 
of  the  privy  through  the  streets  of  the  village  of  Albion,  was 
improperly  admitted,  for  the  purpose  of  proving  a  violation  of 
the  order  of  the  board  of  health.     It  did  not  tend  to  establish 
his  guilt  upon  the  charge  of  violating  the  order,  which  was 
manifestly  the  only  offence  of  which  the  public  prosecutor  was 
seeking  to  convict  the  defendant.     It  was  so  stated  by  the  court 
in  his  charge  to  the  jury.     The   disobedience  complained  of 
Was  the  omission  by  the  defendant  to  perform  certain  affirmative 
acts  enjoined  by  the  order.     The  evidence  in  question   could 
have  no  tendency  to   establish  that  charge,  and  its  effect  could 
be  only  to  embarrass  the  jury,  and  create  a  prejudice  against 
the  defendant.    If  it  was  admissible  for  the  purpose  of  convict- 
ing the  defendant  of  a  common  law  nuisance — which  is  dis 
claimed  on  the  part  of  the  people— it  only  fortifies  the  objection 
to  the  indictment,  of  duplicity.     If  the  evidence  had  been  re- 
ceived simply  to  bear  on  the  question  whether  the  order  had 
been  willfully  violated,  and  had  been  confined  to  that  object, 
perhaps  it  would  have  been  unobjectionable.     But  the  judge 
instructed  the  jury  that  it  was  proper  to  be  considered  by  them 
upon  the  question   whether  the  defendant    had   violated    the 
order  of  the  seventh  of  July.     This  we  think  was  clearly  erro- 
neous. 

2.  The  defendant  offered   evidence  tending  to  show  that  in 
the  months  of  July  and  Angnst  ( 1852)  he  gave  directions  in 
relation  to  cleaning  up  the  premises  in  question.     This  was 
objected  to  on  the  part  of  the  people  and  excluded  by  the  court. 
We  think,  under  the   circumstances,  it  should  have  been  ad- 
mitted.    No  gjround  of  objection  is  stated  in  the  bill  of  excep- 


CAYUGA,  JUNE,  1S/54.  493 

Reed  v.  The  People. 

tions,  and  no  specific  object  avowed  in  the  offer.  We  can  see, 
however,  a  point  of  view  in  which  it  might  have  been  proper, 
especially  if  it  had  been  followed  up  with  other  evidence,  which 
the  defendant  was  virtually  prevented  by  the  court  from  doing. 
It  was  competent,  we  think,  for  the  defendant  to  prove,  a  bona 
fide  attempt  on  his  part  to  obey  the  order  of  the  board  of  health, 
and  although  such  attempt  might  have  fallen  short  of  a  full 
compliance,  yet  it  would  have  been  competent  on  the  question 
whether  the  failure  was  willful. 

3.  There  was  evidence  given  tending  to  show  that  the  de- 
f<  ndant  removed  from  the  village  of  Albion  about  the  17th  of 
J  me,  1852,  with  his  family,  to  his  farm  a  mile  and  a  half  off 
fi  )m  the  corporation  of  the  village  of  Albion,  where  he  had 
si  ice  resided.  The  court  was  requested  to  charge  the  jury  that 
if  they  should  find  that  the  defendant,  at  the  time  of  the  making 
ai  d  serving  the  order,  resided  out  of  the  corporation  of  the 
village  of  Albion,  and  that  the  notice  or  order  was  served  on 
him  out  of  said  corporation,  they  should  acquit  the  defendant. 
The  court  refused  so  to  charge,  but  charged  that  if  they  should 
find  that  the  defendant,  at  the  time  the  order  was  made,  resided 
out  of  said  village,  and  continued  to  reside  out  of  said  village, 
and  had  no  control  of  said  premises,  they  should  acquit  him. 
We  think  the  defendant  was  entitled  to  have  the  jury  instructed 
as  requested,  without  the  condition  or  qualification  imposed  by 
the  court. 

This  point  involves  the  question  whether  a  municipal  corpo- 
ration has  power,  through  any  of  its  agents  or  subordinates,  to 
bind  by  its  bylaws  or  regulations  persons  not  members  of  the 
body,  or  residents  of  the  locality  embraced  by  the  geographical 
boundaries  of  the  corporation.  I  entertain  no  doubt  that  per- 
sons, residing  out  of  such  corporate  bounds,  may  render  them- 
selves obnoxious  to  the  bylaws  and  regulations  of  the  corporation 
by  coming  within,  and  while  there  violating  them.  But  I  deny 
the  right  of  snch  a  corporation  to  make  bylaws  or  regulations, 
binding  personally  upon  an  individual  not  residing  within  its 
geographical  bounds,  and  who  has  done  no  act  within  them 
after  the  making  of  the  bylaw.  It  is  not  important  to  deter- 


494  DECISIONS  IN  CRIMINAL  CASES. 

Reed  v.  The  People. 

mine  whether  this  board  of  health  was  a  corporation;  it  clearly 
could  possess  no  more  extensive  jurisdiction  in  regard  to  per 
sons  or  territorial  limits,  than  the  corporation  of  the  village  of 
Albion,  by  whose  action  it  was  brought  into  existence.  It 
should  be  borne  in  mind  that  the  charge  against  the  defendant 
in  this  case  was,  not  that  he  had  done  anything,  but  that  he  had 
omitted  to  perform  certain  things  which  the  order  required  of 
him.  Whatever  his  liability  in  reference  to  this  order  might 
have  been,  in  case  he  had  been  a  resident  of  the  village  of 
Albion,  and  therefore  a  member  of  the  corporation,  at  the  time 
the  order  was  made,  if  he  was  not  such  a  resident  at  that  time, 
he  was  not  amenable  to  its  authority,  or  liable  to  obey  its  in- 
junctions. The  court  below  made  his  liability  to  depend  upon 
the  questions,  whether  he  continued  to  reside  out  of  the  village 
and  whether  he  had  the  control  of  the  premises.  According  to 
this  holding,  a  man  residing  in  the  city  of  New  York,  owning 
premises  in  the  village  of  Albion,  of  which  he  had  the  control, 
might  be  sent  to  the  state  prison  for  the  acts  of  third  persons, 
done  without  his  permission  or  knowledge,  or  for  omitting  to 
perform  any  act  in  reference  to  such  sanitary  regulations  as  the 
board  of  health  might  see  fit  to  require  of  him.  Such  a  doc- 
trine would  be  intolerable;  and  I  am  not  willing  to  concede  to 
any  municipal  corporation,  or  any  body  of  their  creation,  a 
power  so  fraught  with  danger  to  the  rights  of  individuals  with- 
out the  express  requirement  of  the  legislative  authority.  The 
qualification  of  the  charge  in  relation  to  the  defendant's  control 
of  the  premises,  was  unwarranted,  assuming  the  order  to  have 
been  a  valid  regulation  within  the  meaning  of  the  act,  inas- 
much as  the  offence  charged  and  for  which  the  conviction  was 
had,  did  not  consist  of  any  affirmative  act  done  by  the  defend- 
ant within  the  bounds  of  the  corporation  after  the  rnakiug  and 
publication  of  the  regulation  he  was  charged  with  violating. 

Judgment  reversed 


ORANGE,  JULY.   IS54. 


SUPREME  COURT.     Orange  General  Term,  July,  1854     Brown, 
Rockwell  and  Dean,  Justices. 

GEORGE  LAKE,  pl'ff  in  error  vs.  THE  PEOPLE  clefts  in  error 

Form  of  an  indictment  for  murder,  with  counts  at  common  law  and  under  the 
statute  and  form  of  a  writ  of  er-ror  to  remove  a  criminal  case  from  the  Oyer 
and  Terminpr  to  the  Supreme  Court.  Opinions  of  medical  witnesses  upon 
a  case  of  alleged  insanity,  with  their  statements  of  the  symptoms  and 
evidences  of  insanity. 

Every  man  is  presumed  to  be  sane  till  the  contrary  be  shown.  The  burthen 
of  proof  of  insanity  to  overcome  such  presumption  rests  upon  the  accused. 

The  nature  of  the  criminal  act,  the  degree  of  motive,  scientific  opinions  given 
on  the  trial  and  the  legal  inferences  from  the  conduct  of  the  prisoner,  dis- 
cussed in  the  charge  to  the  jury. 

Where  the  question  to  be  determined  by  the  jury  is  the  sanity  of  a  person,  both 
the  acts  and  declarations  of  the  person  are  evidence  for  the  purpose  of  ascer- 
taining the  state  of  mind  of  the  actor. 

Where,  on  a  trial  for  murder,  the  defence  set  up  is  insanity,  evidence  may  be 
received  of  the  act*  and  declarations  of  the  accused,  as  well  before  and  after, 
as  at  the  time  of  the  homicide. 

But  it  is  not  competent  to  prove  the  effect  which  the  prisoner's  conduct  had 
on  the  mind  of  another  person  on  the  day  before  the  homicide,  nor  the  acts 
nor  declarations  of  the  person  killed,  then  made,  in  the  absence  of  the  pris- 
oner. The  previously  expressed  opinion  of  the  person  killed  is  not  admissible 
evidence  on  the  question  of  insanity,  nor  would  such  person,  if  living,  be 
permitted  to  testify  to  such  opinion. 

If  a  medical  witness  has  heard  only  a  part  of  the  testimony  on  which  the 
piisoner's  counsel  relies  to  establish  his  defence,  it  is  erroneous  to  permit 
such  witness  to  give  his  opinion  as  to  the  prisoner's  sanity,  where  such 
opinion  is  founded  on  the  portion  of  the  testimony  so  heard  by  him. 

To  make  the  opinions  of  experts  admissible,  they  must  be  founded  on  a  given 
state  of  facts,  which  should  embrace  all  the  facts  relied  upon  to  establish  the 
theory  claimed. 

Medical  men  are  allowed  to  give  their  opinions  in  cases  of  alleged  insanity, 
because  they  are  supposed  by  their  study  and  practice  to  understand  the 
symptoms  of  insanity  and  to  possess  peculiar  knowledge  on  that  subject, 
without  which  the  jury  could  not  be  able  to  decide  the  question  correctly, 
but  they  should  not  be  permitted  to  express  such  opinion,  except  on  all  the 
testimony  which  is  relied  on  to  establish  insanity. 

A  medical  witness,  examined  as  an  expert  on  a  question  of  insanity,  may  be 
asked  his  opinion  as  to  a  hypothetical  statement  of  facts-,  he  may  also  be  asked 
what  are  the  symptoms  of  insanity.  Whether  such  facts  exist  or  such 
•ymptoms  are  proved  ft  belongs  exclusively  to  the  jury  to  decide. 


496 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


Where  a  record  of  conviction  of  a  witness,  for  petit  larceny,  is  offered  in  evi- 
dence for  the  purpose  of  discrediting  such  witness,  it  is  not  a  good  ground 
for  rejecting  such  evidence,  that  it  related  to  a  transaction  which  occurred 
more  than  twenty  five  years  before,  though  such  evidence  unaccompanied  by 
proof  of  subsequent  bad  character,  is  entitled  to  but  little  weight. 

An  indictment  for  the  crime  of  murder  was  found  against  the 
plaintiff  in  error  in  the  Dutchess  Oyer  and  Terminer  in  the  fol- 
lowing words: 

Dutchess  County,  ss:  The  jurors  of  the  people  of.  the  state 
of  New  York,  in  and  for  the  body  of  the  county  of  Dutchess, 
upon  their  oaths  and  affirmations,  do  present  that  George  Lake, 
late  of  the  Town  of  La  Grange,  County  of  Dutchess,  and  State 
of  New-York,  laborer,  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  seventh  day  of  June,  in  the  year  one  thousand 
eight  hundred  and  fifty-three,  with  force  and  arms,  at  the  town 
of  LaGrange,  in  the  county  of  Dutchess  aforesaid,  in  and  upon 
one  Hannah  Cromwell,  otherwise  called  Hannah  Lake,  in  the 
peace  of  God  and  of  the  said  people  of  the  state  of  New  York, 
then  and  there  being  then  and  there  feloniously,  willfully  and 
of  malice  aforethought,  did  make  an  assault,  and  that  the  said 
George  Lake,  with  force  and  arms,  with  a  certain  axe,  which 
he  the  said  George  Lake  then  and  there  held,  in  his  hands,  the 
said  Hannah  Cromwell,  otherwise  called  Hannah  Lake,  in  and 
upon  the  head  of  her  the  said  Hannah  Cromwell,  otherwise 
called  Hannah  Lake,  feloniously,  willfully,  and  of  malice 
aforethought,  did  strike,  beat  and  cut,  giving  her  the  said 
Hannah  Cromwell,  otherwise  called  Hannah  Lake,  by  such 
striking  and  beating  and  cutting,  one  mortal  wound,  in  and 
upon  the  head  of  her  said  Hannah  Cromwell,  otherwise  called 
Hannah  Lake,  and  in  and  upon  the  left  side  of  the  head 
of  her  said  Hannah  Cromwell,  otherwise  called  Hannah 
Lake,  of  the  length  of  three  inches  and  of  the  depth  of  one 
inch,  of  which  said  mortal  wound,  she,  the  said  Hannah 
Cromwell,  otherwise  called  Hannah  Lake,  on  the  said  seventh 
day  of  June,  in  the  year  one  thousand  eight  hundred  and 


ORANGE,  JULY,  1854.  497 


Lake  v.  The  People. 


fifty  three,  aforesaid,  at  the  town  and  in  the  county  aforesaid 
did  languish,  and  languishing  did  live,  until  the  eleventh 
day  of  the  same  month  of  June,  and  afterwards,  to  wit 
on  the  said  eleventh  day  of  June,  in  the  year  and  at  the 
place  last  aforesaid,  the  said  Hannah  Cromwell,  otherwise 
called  Hannah  Lake,  of  the  said  mortal  wound  died;  and  so 
the  jurors  aforesaid,  upon  their  oaths  and  affirmations  aforesaid, 
do  say  that  the  said  George  Lake,  the  said  Hannah  Cromwell, 
otherwise  called  Hannah  Lake,  in  manner  and  form  aforesaid, 
feloniously,  >  willfully,  and  of  malice  aforethought  did  kill  and 
murder,  against  the  peace  of  the  people  of  the  state  of  New 
York,  and  their  laws,  and  dignity,  and  against  the  form  of  the 
statute  in  such  case  made  and  provided. 

And  the  jurors  aforesaid  upon  their  oaths  and  affirmations, 
aforesaid,  do  further  present  that  George  Lake,  late  of  the  town 
of  LaGrange,  in  the  county  of  Dutchess  and  state  of  New  York, 
laborer,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on  the 
seventh  day  of  June  in  the  year  one  thousand  eight  hundred 
and  fifty-three,  with  force  and  arms,  at  the  town  of  LaGrange, 
in  the  county  and  state  aforesaid,  in  and  upon  one  Hannah 
Cromwell,  otherwise  called  Hannah  Lake,  in  the  peace  of  God 
and  the  people  of  the  said  state,  then  and  there  being,  then  and 
there  feloniously,  willfully,  unlawfully,  and  from  a  premeditated 
design  to  effect  the  death  of  the  said  Hannah  Cromwell,  other- 
wise called  Hannah  Lake,  did  make  an  assault,  and  the  said 
George  Lake,  with  a  certain  axe  made  of  iron  and  steel,  of  the 
value  of  one  dollar,  which  he  the  said  George  Lake,  in  his 
hands  then  and  there  held,  the  said  Hannah  Cromwell,  other- 
wise called  Hannah  Lake,  in  and  upon  the  left  side  of  the  head 
of  her,  the  said  Hannah  Cromwell,  otherwise  called  Hannah 
Lake,  just  above  the  ear  of  her  the  said  Hannah  Cromwell, 
otherwise  called  Hannah  Lake,  then  and  there  unlawfully, 
willfully,  maliciously,  and  of  his  malice  aforethought,  did 
strike,  thrust,  beat  and  cut,  giving  to  the  said  Hannah  Crom- 
well, otherwise  called  Hannah  Lake,  then  and  there,  \\ith 
the  axe  aforesaid,  in  and  upon  the  left  side  of  the  head  of 

VOL.  I.  63 


498  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

her  the  said  Hannah  Cromwell,  otherwise  called  Hannah 
Lake,  just  above  the  ear  of  her  the  said  Hannah  Cromwell, 
otherwise  called  Hannah  Lake,  one  mortal  wound,  of  the 
length  of  three  inches,  and  of  the  depth  of  one  inch,  of 
which  said  mortal  wound  the  said  Hannah  Cromwell,  otherwise 
called  Hannah  Lake,  from  the  said  seventh  day  of  June  in  the 
year  last  aforesaid,  until  the  eleventh  day  of  June,  in  the  same 
year,  at  the  town  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live,  on  which  said  eleventh  day  of 
June  in  the  year  aforesaid,  the  said  Hannah  Cromwell,  other- 
wise called  Hannah  Lake,  at  the  town  of  LaGrange  aforesaid, 
in  the  county  aforesaid,  of  the  said  mortal  wound  did  die;  and 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  George  Lake  her  the  said  Hannah  Cromwell,  otherwise 
called  Hannah  Lake,  in  the  manner  and  by  the  means  aforesaid, 
feloniously,  willfully,  unlawfully  and  of  malice  aforethought, 
and  with  a  premeditated  design  to  effect  the  death  of  the  said 
Hannah  Cromwell,  otherwise  called  Hannah  Lake,  did  kill  and 
murder,  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  of  the  people  of  the  state 
of  New  York,  and  their  laws  and  dignity. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present  that  George  Lake  late  of  the  town 
of  La  Grange,  in  the  county  of  Dutchess  and  state  of  New 
York,  laborer,  not  having  the  fear  of  God  before  his  eyes,  but 
being  moved  and  seduced  by  the  instigation  of  the  devil,  on 
the  seventh  day  of  June  in  the  year  one  thousand  eight  hund- 
red and  fifty-three,  with  force  and  arms,  at  the  town  aforesaid, 
in  the  county  aforesaid,  in  and  upon  one  Hannah  Cromwell, 
otherwise  called  .Hannah  Lake,  in  the  peace  of  God  and  the 
said  people  then  and  there  being,  then  and  there,  feloniously, 
willfully,  and  of  his  malice  aforethought,  did  make  an  assault, 
and  that  the  said  George  Lake,  with  a  certain  axe  and  a  cer- 
tain sword  which  he  the  said  George  Lake  in  his  hand  then 
and  there  had,  and  held,  the  said  Hannah  Cromwell,  otherwise 
called  Hannah  Lake,  in  and  upon  the  head,  neck,  arms,  legs, 
and  body  of  her  the  said  Hannah  Cromwell,  otherwise  called 


ORANGE,  JULY,  1854.  499 


Lake  v.  The  People. 


Hannah  Lake,  then  and  there  feloniously,  wilfully  and  of  hi& 
malice  aforethought,  did  strike,  cut  and  thrust,  giving  to  the 
said  Hannah  Cromwell,  otherwise  called  Hannah  Lake,  then 
and  there,  with  the  axe  and  sword,  aforesaid,  in  and  upon 
the  head,  neck,  arms,  legs  and  body,  of  her  the  said  Hannah 
Cromwell,  otherwise  called  Hannah  Lake,  several  mortal 
wounds,  to  wit:  one  mortal  wound  on  the  right  side  of  the 
head  of  her  said  Hannah  Cromwell,  otherwise  called  Hannah 
Lake,  of  the  depth  of  one  inch  and  the  length  of  four  inches, 
one  mortal  wound  on  the  left  side  of  the  head  of  her  the  said 
Hannah  Cromwell,  otherwise  called  Hannah  Lake,  of  the 
length  of  four  inches,  and  of  the  depth  of  one  inch,  one  mortal 
wound  on  the  neck  of  her  the  said  Hannah  Cromwell,  other- 
wise called  Hannah  Lake,  of  the  length  of  three  inches,  and 
the  depth  of  two  inches,  one  mortal  wound  on  the  top  of  the 
head  of  the  said  Hannah  Cromwell,  otherwise  called  Hannah 
Lake,  of  the  length  of  three  inches  and  of  the  depth  of  two 
inches  of  which  said  mortal  wounds  the  said  Hannah  Crom- 
well, from  the  said  seventh  day  of  June  in  the  year  aforesaid, 
until  the  eleventh  day  of  June  in  the  year  aforesaid,  of  the  town 
aforesaid  and  the  county  aforesaid,  did  languish  and  languish- 
ing did  live,  on  which  said  llth  day  of  June  in  the  year  arore- 
said,  the  said  Hannah  Cromwell,  at  the  town  aforesaid,  in. the 
county  aforesaid,  of  the  said  mortal  wound  aforesaid,  died;  and 
the  jurors  aforesaid,  upon  their  oaths  aforesaid  do  say  that  the 
said  George  Lake  the  said  Hannah  Cromwell,  otherwise  called 
Hannah  Lake,  in  manner  and  form  aforesaid,  feloniously,  will- 
fully and  of  his  malice  aforethought,  did  kill  and  murder, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided and  against  the  peace  of  the  people  of  the  state  of  New 
York,  and  their  laws  and  dignity. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present  that  George  Lake,  late  of  the  town 
of  LaGrange  in  the  county  of  Dutchess  and  state  of  New  York, 
laborer,  not  having  the  fear  of  God  before  his  eyes  but  being 
moved  and  seduced  by  the  instigations  of  the  devil,  on  the  7th 
day  of  June,  in  the  year  1853,  with  force  and  arms  at  the  town 


5QO  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

aforesaid  in  the  county  aforesaid,  in  and  upon  one  Hannah 
Cromwell  otherwise  called  Hannah  Lake,  in  the  peace  of  God 
and  the  people  of  said  state  then  and  there  being,  then  and 
there  feloniously,  willfully,  and  of  his  malice  aforethought  and 
from  a  premeditated  design  to  effect  the  death  of  said  Hannah 
Cromwell,  otherwise  called  Hannah  Lake,  did  make  an  assault, 
and  that  the  said  George  Lake  then  and  there  with  force  and 
arms  and  with  certain  instruments  yet  to  the  jurors  aforesaid 
unknown  which  he  the  said  George  Lake  then  and  there  had 
and  held  in  his  hands  of  him  the  said  George  Lake  the  said 
Hannah  Cromwell  otherwise  called  Hannah  Lake  in  and  upon 
the  head,  face,  and  neck  of  her  the  said  Hannah  Cromwell 
otherwise  called  Hannah  Lake,  feloniously,  willfully  and  of 
malice  aforethought  and  from  a  premeditated  design  to  effect  the 
death  of  the  said  Hannah  Cromwell,  otherwise  called  Hannah 
Lake,  did  strike,  beat,  cut,  then  and  there  giving  her  the  said 
Hannah  Cromwell  otherwise  called  Hannah  Lake,  by  such 
striking,  beating,  cutting,  divers  mortal  wounds  and  contusions 
in  and  upon  the  head,  face  and  neck  of  her  the  said  Hannah 
Cromwell  otherwise  called  Hannah  Lake,  to  wit:  one  mortal 
wound  on  the  left  side  of  the  head  of  her  the  said  Hannah 
Cromwell  otherwise  called  Hannah  Lake  just  above  the  ear  of 
the  length  of  four  inches  and  of  the  depth  of  two  inches,  also 
one  other  mortal  wound  on  the  right  side  of  the  head  of  her 
the  said  Hannah  Cromwell  otherwise  called  Hannah  Lake,  just 
above  the  ear,  of  the  length  of  five  inches  and  of  the  depth  of 
two  inches;  also  one  mortal  wound  on  the  top  part  of  the  head 
of  her  the  said  Hannah  Cromwell  otherwise  called  Hannah 
Lake  above  the  wound  aforesaid  on  the  left  side  of  the  head  of 
the  said  Hannah  Cromwell  otherwise  called  Hannah  Lake  of 
the  length  of  five  inches  and  the  depth  of  two  inches,  and 
-  divers  other  mortal  wounds  in  and  upon  the  head,  face  and 
neck  of  her  the  said  Hannah  Cromwell  otherwise  called  Han- 
nah Lake,  of  which  said  mortal  wounds  and  bruises  the  said 
Hannah  Cromwell  otherwise  called  Hannah  Lake,  from  the 
said  seventh  day  of  June  in  the  year  aforesaid  until  the 
;elerenth  day  of  the  same  month  of  June,  in  the  year  aforesaid, 


OKANGE.  JULY,  18.54. 


Lake  v.  The  People. 


at  the  town  aforesaid,  in  the  county  aforesaid  did  languish 
and  languishing  did  live,  on  which  said  eleventh  day  of  June 
in  the  year  aforesaid  the  said  Hannah  Cromwell  otherwise 
called  Hannah  Lake  at  the  town  and  county  aforesaid  of  the 
said  mortal  wounds  and  contusions  aforesaid  diedj  and  so  the 
jurors  aforesaid  upon  their  oaths  and  affirmations  aforesaid  do 
say  that  the  said  George  Lake  the  said  Hannah  Cromwell 
otherwise  called  Hannah  Lake  in  manner  and  form  aforesaid 
feloniously,  willfully  and  of  malice  aforethought  and  from 
a  premeditated  design  to  effect  the  death  of  the  said  Hannah 
Cromwell  otherwise  called  Hannah  Lake  did  kill  and  murder 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided and  against  the  peace  of  the  people  of  the  state  of  New 
York  and  their  laws  and  dignity. 

A  plea  of  not  guilty  was  interposed,  and  on  a  trial  before 
the  Dutchess  Oyer  and  Terrniner,  the  plaintiff  in  error  was  con- 
victed and  sentenced  to  be  executed.  Proceedings  were  subse- 
quently stayed  and  the  cause  was  brought  into  this  court  by  a 
writ  of  error  and  allowance  in  the  following  words: 

The  people  of  the  state  of  New  York  to  Seward  Barculo, 
Egbert  Q.  Eldridge,  and  Rensselaer  Case,  Supreme  Court  Jus- 
tice, County  Judge,  and  Justice  of  the  Sessions,  forming  the 
Court  of  Oyer  and  Terminer,  in  and  for  the  County  of  Dutchess, 
sitting  at  Poughkeepsie,  in  said  county,  on  the  4th  Monday  of 
September,  1853. 

Because  in  the  record  and  proceedings,  and  also  in  the  giv- 
ing of  judgment,  upon  an  indictment  against  George  Lake,  of 
the  town  of  LaGrange,  in  said  county,  for  the  murder  of  Han- 
nah Cromwell,  alias  Hannah  Lake,  of  said  town  of  LaGrange, 
which  was  tried  before  you  at  said  term  of  said  court  of  Oyer 
and  Terminer,  manifest  error  has  intervened  to  the  great  dam- 
age of  the  said  George  Lake,  as  by  his  complaint  we  are 
informed.  We  being  willing  that  the  error,  if  any  there  be, 
should  in  due  manner  be  corrected,  and  full  and  speedy  justice 
done  in  this  behalf,  do  command  you,  that  if  judgment  be 


502  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

thereupon  given,  then  you  send  to  our  justices  of  our  Supreme 
Court,  distinctly  and  openly,  under  your  seal,  the  record  of 
that  judgment  and  proceedings,  upon  the  indictment  aforesaid, 
with  all  things  concerning  the  same,  and  that  you  cause  this 
writ  and  the  return  thereto  to  be  filed,  forthwith,  in  the  office 
of  the  clerk  of  the  Supreme  Court,  of  our  said  state,  in  the  said 
county  of  Dutchess,  after  the  service  of  this  writ,  that  the 
record  and  proceedings  aforesaid,  being  inspected,  we  may 
cause  to  be  further  done  thereupon,  for  correcting  that  error, 
what  of  right,  and  according  to  the  law  and  custom  of  the  state 
of  New  York,  ought  to  be  done.  Witness  Seward  Barculo 
Esquire,  one  of  the  justices  of  our  said  court,  at  Poughkeepsie, 
this  3d  day  of  December,  A.  D.  1853. 

George  H.  Tompkins,  Clerk. 
H.  &  M.  HALE,  Attorneys. 

I  hereby  allow  the  foregoing  writ  of  error  and  expressly 
direct  that  the  same  shall  operate  as  a  stay  of  execution  and 
of  all  proceedings  on  the  judgment  upon  which  said  writ  is 
brought. 

S.  BARCULO, 
Justice  of  the  Supreme  Court. 
Dated  December  3d,  1853. 

By  the  return  to  the  writ  of  error,  it  appeared  the  indictment 
was  tried  at  the  Dutchess  Circuit  before  Barculo,  J.,  of  the 
Supreme  Court,  assisted  by  Eldridge,  County  Judge,  and  Case, 
Justice  of  the  Sessions,  on  the  26th  day  of  September,  1853, 
when  the  following  proceedings  took  place: 

The  district  attorney  first  introduced,  as  a  witness  in  behalf 
of  the  people, 

Henry  Robinson,  who,  being  duly  sworn,  said  that  he  was 
acquainted  with  the  prisoner  at  the  bar,  lived  200  or  250  rods 
from  where  the  prisoner  formerly  lived,  in  the  town  of  La- 
Grange.  On  the  7th  day  of  June  last,  between  10  and  11 
o'clock,  A.  M.,  he  saw  Hannah  Cromwell  or  Lake,  coming  out 
of  the  house,  Lake  (the  prisoner)  close  behind  her.  Lake 


ORANGE,  JULY,   :s;4. 


Lake  v.  The  People. 


whirled  her  round,  and  dashed  her  head  towards  the  door,  he 
then  stepped  round  on  the  west  side  of  the  post,  and  took  up,  1 
thought  it  was  an  axe,  and  struck  her;  I  heard  the  woman 
halloo  "Oh  George!  don't  kill  me,"  and  repeat  it  twice.  This 
was  before  he  struck  her,  I  then  went  after  help,  and  when  we 
came  back  Hannah  lay  in  the  same  spot  where  I  saw  her 
before.  I  didn't  go  to  the  house;  saw  her  brought  from  the 
house  in  a  wagon;  couldn't  tell  from  her  appearance  whether 
she  was  dead  or  alive;  saw  her  again,  dead,  the  day  she  was 
buried,  four  or  five  clays  after  I  saw  her  hurt. 

The  district  attorney  next  put  upon  the  stand,  Dr.  Samuel 
Dodge  who  testified  that  he  was  a  physician,  residing  in  Union 
Vale,  that  he  saw  Hannah  Cromwell  or  Lake,  about  the  7th  of 
June  last,  when  she  was  injured,  and  he  then  examined  her 
wounds,  and  found  a  fracture  of  the  skull  and  several  cuts  in 
the  scalp,  that  she  was  carried  to  a  house  and  remained  about 
three  days  and  died,  that  the  cause  of  her  death  was  the  wound 
spoken  of. 

On  his  cross-examination  this  witness  testified,  that  the  frac- 
ture was  about  an  inch  or  inch  and  a  half  above  the  ear,  the 
brain  was  protruding;  it  might  have  been  made  with  an  axe; 
the  scalp  was  injured.  I  suppose  by  falling;  I  saw  the  children, 
the  youngest  had  one  side  of  the  head  cut  through  and  down 
through  the  lower  jaw,  it  was  not  such  a  wound  as  would  have 
been  inflicted  with  an  axe,  it  was  too  long;  one  child  was  a 
year  and  a  half  old,  the  other  three  years;  the  skull  of  the 
oldest  child  was  broken  and  a  piece  carried  away,  as  if  with  a 
club  or  bludgeon;  I  saw  Lake  three  or  four  weeks  before  the 
occurrence;  he  was  in  the  habit  of  treating  his  family  as  well 
as  any  other  man  would;  he  lived  with  the  woman  .as  his  wife, 
he  called  on  me  to  visit  her  professionally  as  his  wife;  I  never 
saw  him  drink,  I  don't  know  as  I  ever  saw  him  unduly  excited 
by  liquor. 

The  district  attorney  next  called,  in  behalf  of  the  people, 
Carpenter  D.  Townsend,  who  testified  as  follows: 

I  live  at  LaGrange;  know  prisoner;  have  known  nim  by 
sight  ten  or  twelve  years;  have  not  seen  him  very  frequently; 


604 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


about  as  often  as  three  or  four  times  a  year;  took  him  in  cus- 
tody as  an  officer  for  the  offence;  had  him  in  charge  the  next 
night;  talked  with  him  there;  he  said  he  killed  this  woman 
Hannah  Cromwell  alias  Lake;  he  said  that  she  had  a  deed 
which  he  had  given  her,  which  he  wanted  her  to  give  back  to 
him,  but  she  refused  to  do  so;  he  said  that  was  the  reason  why 
he  killed  her;  he  thought  that  if  she  had  given  up  the  deed  she 
would  still  have  been  living;  had  a  conversation  writh  him 
after  that;  he  would  talk  with  me  till  I  had  delivered  him  to 
the  sheriff,  he  conversed  freely  and  calmly  whenever  I  talked 
to  him;  have  seen  him  since  in  jail,  but  he  would  not  talk  with 
me;  don't  think  that  I  have  ever  seen  him  at  work  on  his  place; 
understood  him  to  be  a  clock  repairer,  have  seen  him  at  work 
at  it;  saw  him  repair  a  clock  in  1849. 

Cross-examination  by  Mr.  Hale:  I  asked  him  if  he  had  given 
her  a  deed,  he  said  he  had;  asked  him  if  he  had  tried  to  make 
her  give  it  up,  he  said  he  had;  I  have  acknowledged  to  you 
(Mr.  Hale)  that  prisoner  said  that  if  she  had  given  up  the  pa- 
per he  would  not  have  killed  her;  prisoner  appeared  to  make 
an  effort  to  appear  strange,  I  said  he  did  tolerably  well  for  a 
green  hand;  could  not  explain  how  he  acted  exactly,  but  he 
produced  upon  my  mind  the  impression  that  he  tried  to  appear 
strange;  when  he  had  time  for  reflection  he  would  sometimes 
give  a  vague  answer,  but  when  he  was  pressed  he  would  talk 
as  usual;  asked  him  why  he  had  killed  his  children,  he  replied 
"  that  as  he  had  commenced  the  job,  he  thought  he  would  finish 
the  breed;"  he  gave  a  detailed  account  of  the  occurrence;  he 
said  he  killed  the  woman  first;  he  threw  her  down  upon  the 
door  step  and  killed  her  with  an  axe;  he  said  he  next  took  the 
older  child  and  dashed  it  against  the  door  steps,  he  thought 
that  killed  it;  he  did  not  strike  it  with  a  weapon;  he  killed 
the  other  with  an  axe;  it  was  up  stairs;  he  killed  it  with  an 
axe  and  threw  it  out  of  the  window:  was  at  the  house;  did  not 
see  him  shot;  he  was  bleeding  when  arrested;  I  saw  blood  in 
the  room  where  he  was  arrested;  did  not  see  marks  of  violence 
on  any  furniture;  have  never  seen  him  intoxicated;  when  I 
first  saw  him,  he  was  out  of  the  house  and  nearly  naked;  he 


ORANGE,  JULY,  1854.  595 


Lake  v.  The  People. 


had  on  a  garment  I  supposed  to  be  a  woman's  night  gown;  he 
had  on  no  other  clothes;  this  was  about  2  o'clock  in  the  after 
noon. 

Direct  resumed — I  washed  his  wounds  with  water;  had  a 
conversation  with  Mr.  Hale  in  his  office;  the  conversation  I  had 
with  prisoner  commenced  by  my  asking  him  if  he  had  given 
the  woman  a  deed  of  the  place  where  he  lived;  he  said  he  had; 
I  then  inquired  of  him  whether  he  had  tried  to  make  her  give 
it  up.  He  said  he  had,  and  she  refused  to  do  so;  asked  him  if 
that  was  the  cause  of  his  killing  her.  He  said  that  it  was;  he 
further  said  that  if  she  had  given  up  the  paper  she  would  have 
been  still  living. 

The  district  attorney  then  offered  in  evidence  a  deed  from 
George  Lake  to  Hannah  Cromwell,  of  the  premises  upon  which 
they  resided,  dated  21st  January,  1853,  recorded  Feb'y,  1853. 
It  was  read  to  the  jury. 

George  Cromwell  sworn  for  the  prosecution: — I  knew  Han- 
nah Cromwell;  she  was  my  daughter;  guess  she  was  never 
married  to  George  Lake;  never  knew  they  were  married;  if 
she  was  living  she  would  be  24  years  old  the  25th  of  this 
month;  she  commenced  to  live  with  prisoner  about  3  years  ago 
last  January;  knew  Lake  about  4  years  before  he  lived  with 
Hannah;  Hannah's  sister  lived  in  the  same  house  with  Lake; 
Hannah  used  to  go  down  there  to  see  her;  Lake  brought  her 
home  twice. 

The  prosecution  here  rested. 

Levi  Vincent  was  then  sworn  for  the  prisoner,  and  testified 
as  follows:  I  was  present  at  the  house  of  the  accused  on  the 
7th  of  June  last;  Cyrus  Perkins  came  to  my  house  about  the 
middle  of  the  day,  he  came  after  me,  we  went  to  his  house,  we 
saw  the  prisoner  in  an  upper  room,  standing  before  a  window; 
he  had  nothing  on  but  a  woman's  night  gown;  it  had  short 
sleeves;  it  came  down  aBout  to  the  hips;  it  was  while  he  stood 
there  before  the  window  flourishing  a  short  sword;  heard  him 
say  "  all  those  that  are  in  the  right  way  shall  not  be  destroyed, 
but  them  that  ain't  will;"  he  flourished  his  sword  and  said  it  was 
Gen.  Washington's  sword;  I  was  about  12  rods  from  the  house, 

VOL.  I.  64 


50(5  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

was  in  the  road;  saw  two  dead  bodies  lying  in  front  of  the 
house;  one  was  the  woman  he  called  his  wife;  the  other  was 
his  child;  do  not  know,  but  think  he  could  see  the  bodies  from 
the  window  where  he  was  standing;  should  think  he  could;  he 
laughed  sometimes,  sometimes  sung;  and  sometimes  he  appeared 
to  be  dancing;  did  not  see  him  cry;  remained  there  at  the  house 
one  hour  and  a  half  or  two  hours;  this  course  continued  nearly 
all  the  while;  we  commenced  breaking  up  the  floor  about  one 
hour  after  I  got  there;  we  tore  up  the  floor  with  an  axe;  saw 
him  pass  the  window;  he  was  walking  around  the  floor  in  a 
circle  while  we  were  breaking  up  the  floor;  the  sword  was 
pointed  down  most  of  the  time,  his  head  down  too;  he  kept 
moving  so,  with  his  head  down;  he  continued  to  do  so  until  we 
tore  up  the  second  board  in  the  floor,  then  he  left;  don't  know 
where  he  went  till  he  was  shot;  the  blood  was  running  from 
his  arm  in  quite  a  stream;  it  was  running  from  his  face,  arm 
and  breast;  a  good  deal  of  blood  came  from  him;  about  half  a 
pint;  might  have  been  more  or  less;  some  of  the  company  then 
went  up  and  took  him  out  and  put  him  on  a  straw  bed;  Ste- 
phen Manchester,  Archibald  S.  Colwell,  Edwin  Colwell,  Hub- 
bart  Duncan,  Alfred  Van  Black,  Washington  Vincent,  Cyrus 
Perkins  and  Jonathan  Moore  were  near  there  and  a  good  many 
more;  the  windows  were  broken  out,  beds  were  thrown  out  cf 
doors,  some  stove  pipe,  some  bedsteads,  tables,  and  a  rifle;  the 
rifle  appeared  as  if  it  had  been  struck  with  an  axe  or  some 
sharp  instrument;  it  was  cut  on  the  breech,  and  on  the  barrel; 
saw  marks  of  an  axe  on  the  bureau  and  clock;  they  appeared 
as  though  they  had  been  struck  with  a  dull  axe;  they  were 
pretty  well  broken  up;  had  not  seen  Lake  for  a  week  and  a 
half  before  this;  then  saw  him  pass  on  the  road;  he  was  driv- 
ing his  horse;  he  drove  much  slower  than  I  had  formerly  seen 
him  do;  he  did  not  appear  to  notice  me;  he  looked  more  wild 
out  of  his  eyes  and  appeared  more  downcast  than  usual;  when 
I  first  saw  him  he  was  turning  his  wagon  around  in  the  road; 
I  spoke  to  him  but  he  did  not  reply  ;  he  turned  his  wagon 
twice  round;  he  was  in  the  act  of  turning  round  when  I  saw 
him;  he  looked  wild;  this  was  a  few  days  before  the  tragedy; 


ORANGE,  JULY,   1851. 


Lake  v.  The  People. 


t  live  about  half  a  mile  from  him;  am  a  blacksmith,  farm  it 
sometimes;  never  saw  but  that  he  was  kind  to  his  family;  never 
have  seen  anything  but  what  he  was  kind  towards  his  children; 
after  he  was  arrested,  I  searched  the  house  a  good  deal  to  find 
some  liquor,  but  found  none,  or  any  fire-arms,  found  no  powder 
or  balls  or  any  ammunition;  his  place  was  worth  about  two 
hundred  and  fifty  or  three  hundred  dollars. 

Cross-examination: — Don't  know  that  he  was  worth  any 
other  property  besides  his  place;  have  known  him  since  he  was 
a  boy;  know  his  father;  live  about  a  mile  and  a  half  from  where 
Lake  lived;  prisoner  has  one  sister  living;  no  brother,  no 
mother  living;  did  not  propose  to  knock  him  on  the  head  with 
a  hammer  because  he  was  ugly;  saw  no  hammer  there;  when 
I  first  arrived  there  my  attention  was  attracted  by  his  halooing 
and  flourishing  his  sword;  could  see  him  walk  around  in  a  cir- 
cle; could  not  say  what  he  went  around  to  see;  don't  think  I 
heard  him  say  anything  about  shooting;  don't  recollect  that  he 
said  he  would  kill  any  one  who  tried  to  arrest  him;  all  hands 
appeared  to  be  afraid  to  go  and  arrest  him;  saw  blood  run  from 
his  arm  in  a  stream;  when  we  were  breaking  through  the  floor 
he  kept  walking  in  a  circle;  he  continued  to  do  so;  they  laid 
him  on  a  bed  when  they  fetched  him  out;  have  known  him  from 
a  child;  the  last  time  I  saw  him  before  was  about  a  week  and  a 
half  before  the  tragedy;  he  was  working  on  his  place;  he  was 
in  a  field;  don't  know  what  he  was  doing;  he  appeared  to  be 
planting  corn;  this  was  about  one  week  and  a  half  after  I  saw 
him  in  the  road;  I  was  going  east  at  the  time  I  saw  him  on 
the  road;  his  wife  and  child  were  with  him;  this  was  the 
time  I  saw  him  turn  around;  I  bowed  to  them;  neither  one  of 
them  spoke;  he  was  in  the  act  of  turning  around  when  I  just 
saw  him;  he  turned  away  around  again,  then  passed  on;  he 
was  rather  reserved;  he  was  always  a  person  of  few  words:  he 
was  not  always  short  or  abrupt  in  conversation;  have  had  a 
considerable  conversation  with  him  about  his  place;  don't 
know  that  I  ever  saw  him  enter  into  extended  conversation  with 
any  one;  saw  marks  of  violence  before  I  went  into  the  house; 
a  piece  of  a  chest  split  off  and  a  rifle;  don't  know  when  the 


508  DECISIONS  IN  CRIMINAL  CASES. 

Lake  o.  The  People. 

chest  was  split;  don't  know  how  the  marks  were  made  on  th« 
furniture  in  the  house;  he  made  a  loud  noise,  heard  it  nearly 
to  the  house  where  I  lived  which  was  over  half  a  mile;  a  loud, 
boisterous  noise,  like  preaching;  was  present  at  an  examination 
of  the  prisoner  4  or  5  weeks  previous,  before  a  magistrate;  he 
appeared  strange,  his  eyes  looked  wild  and  his  face  appeared 
to  twitch. 

Polly  Phillips  sworn.  I  live  a  fourth  of  a  mile  from  Lake; 
have  lived  in  the  vicinity  eight  years;  saw  prisoner  the  night 
before  this  tragedy;  I  went  there  to  see  him;  it  was  on  Mon- 
day between  five  and  six  P.  M.;  saw  him  and  his  family;  he 
was  sitting  on  a  bureau  in  the  northeast  corner  of  the  room; 
he  was  sitting  on  a  bureau  with  his  feet  in  a  drawer.  I  asked 
him  to  go  and  fix  a  clock  for  me,  but  he  would  not  notice  me; 
his  wife  spoke  to  him  and  told  him  I  carne  to  get  him  to  fix  a 
clock,  but  he  would  not  notice  her.  I  could  not  understand  all 
he  said;  once  in  a  while  he  would  slap  his  hand  and  say, 
**  well,  there — and  no  mistake."  She  repeated  to  him  many 
times  about  my  coming  to  get  him  to  fix  a  clock;  so  did  I,  but 
he  would  not  pay  any  attention  to  us.  He  repaired  clocks. 
When  I  went  to  go  down  from  his  room  the  last  time,  I  think 
he  said,  "  Poll  Phillips."  I  observed  that  he  laughed  and  cried 
both;  put  his  hand  up  to  his  head  and  rubbed  his  head  and 
kept  spitting;  he  would  raise  up  and  press  his  head  against  the 
wall,  as  he  sat  on  the  bureau;  he  always  treated  his  family 
well  before  this;  he  and  the  woman  said  they  were  r.  arried  and 
called  each  other  man  and  wife;  I  first  saw  Hannal  that  after- 
noon  by  the  road. 

The  defendant's  counsel  then  asked  this  witness,  '  what  was 
she  doing  when  you  saw  her  there?" 

To  this  question  the  counsel  for  the  people  objected  and  the 
court  sustained  the  objection  and  excluded  the  question,  to 
which  decision  of  the  court  defendant's  counsel  then  and  there- 
upon duly  excepted. 

Defendant's  counsel  then  offered  to  show  by  this  witness  that 
the  woman  Hannah  was  then  in  tears.  The  court  rejected  the 
offer,  to  which  rejection  by  thQ  court  defendant's  counsel  duly 
excepted. 


ORANGE,  JULY,  1854. 


Lake  r.  The  People. 


Defendant's  counsel  then  offered  to  prove  from  the  declarations 
of  Hannah,  the  night  before  the  alleged  murder,  that  the  con- 
duct of  Lake  had  been  so  strange  and  unnatural,  as  to  alarm 
the  wife  and  family;  that  the  wife  exhibited  this  alarm  the 
night  before  the  alleged  murder  in  complaints  to  the  neighbors 
and  to  show  what  these  complaints  were. 

This  evidence  the  court  refused  to  admit,  to  which  refusal 
defendant's  counsel  thereupon  duly  excepted. 

Defendant's  counsel  then  offered  to  show  the  declarations  of 
the  wife  and  the  expressions  of  alarm  made  use  of  by  her  the 
night  before  the  alleged  murder,  as  the  effect  from  which  the 
jury  can  reason  to  the  cause,  in  the  insanity  of  the  prisoner; 
this  offer  the  court  rejected,  unless  made  in  prisoner's  presence, 
and  defendant's  counsel  thereupon  duly  excepted.  The  witness 
then  proceeded  1o  say,  there  were  some  bedclothes  out  of  doors 
when  I  was  there. 

Cross-examined — I  have  known  prisoner  eight  years;  have 
seen  him  sometimes  every  day  the  last  five  years;  he  was  a  man 
of  few  words;  I  never  heard  him  say  a  great  deal;  don't  think 
he  was  blunt  in  his  speech;  have  never  seen  him  intoxicated. 

Catharine  Johnson  sworn — I  live  at  Pleasant  Valley;  knew 
Lake  when  he  was  a  boy;  I  lived  about  a  mile  from  him;  saw 
him  on  the  6th  of  June  last  between  9  and  10  o'clock,  A.  M.; 
he  was  walking  on  his  stoop,  he  was  rubbing  his  head  with  his 
hands  and  making  terrible  shrieks;  the  noise  was  very  loud  and 
continued  till  I  got  out  of  hearing;  could  hear  him  over  half  a 
mile;  saw  him  put  his  hands  on  his  wife's  neck,  and  hold  his 
head  on  her  neck,  and  cry  very  bitterly.  I  said  nothing  to  him; 
was  there  about  five  or  ten  minutes;  went  by  the  house  after 
that  the  same  day;  did  not  see  him  or  hear  any  noise;  have 
worked  for  him  last  winter  when  his  wife  was  sick;  never  saw 
him  do  anything  amiss  to  his  family;  never  saw  him  act  other- 
wise than  kind  and  pleasant  to  his  family;  have  been  there  to 
work  perhaps  a  dozen  times;  went  there  at  prise  ner's  request; 
was  there  when  Hannah  was  confined;  was  there  when  she  had 
her  first  and  last  child;  he  acted  kind  and  tender  to  his  family; 
never  saw  him  out  of  the  way  with  liquor. 


510  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

Cross-examined — When  I  first  saw  him  his  wife  was  sitting 
on  the  step  of  the  door;  she  appeared  to  sit  there  sewing;  he 
was  on  the  stoop  walking  backwards  and  forwards;  he  would 
first  rub  his  own  head  and  cry,  then  he  would  put  his  arms 
around  her  neck,  with  his  face  down  her  neck  and  cry;  she  did 
not  raise  up  when  he  did  so.  I  am  not  more  friendly  towards 
him  than  to  his  wife  and  children;  have  been  in  the  house  four 
or  five  times  within  the  year  past;  the  noise  he  made  could  be 
heard  for  half  a  mile;  have  been  in  the  county  jail  a  great  many 
times.  The  district  attorney  here  asked  this  witness  the  ques- 
tion, "Were  you  imprisoned  in  the  county  jail  in  1827?"  This 
question  was  objected  to  by  defendant's  counsel,  as  not  being 
the  best  evidence  of  such  imprisonment,  if  any  there  had  been; 
this  objection  was  overruled  by  the  court  and  the  question  ad- 
mitted, to  which  decision  of  the  court  defendant's  counsel 
thereupon  duly  excepted.  Witness  declined  answering  the  ques- 
tion, and  the  court  refused  to  compel  her  to  answer  it,  to  which 
refusal  the  district  attorney  duly  excepted. 

Direct  resumed — I  am  fifty-one  years  old;  saw  the  prisonei 
in  jail  when  he  was  confined,  for  shooting  at  his  brotherinlaw, 
a  few  weeks  before  this  occurrence;  he  then  walked  around  the 
room  and  whispered  a  good  deal  to  his  wife;  he  cried  when  he 
took  his  children  from  my  arms  into  his;  he  walked  around  and 
said  if  it  was  not  for  his  wife  and  children  he  would  as  lief  be 
there  as  anywhere;  don't  know  as  I  am  related  to  prisoner; 
could  not  tell  whether  he  looked  when  he  was  in  jail  as  he 
he  looks  now. 

When  the  next  witness  (Dr.  Varick)  was  called,  the  prison- 
er's counsel  stated  to  the  court  that  several  medical  witnesses 
were  present,  who  desired  to  leave  court  as  soon  as  possible, 
and  requested  the  court  to  intimate  what  rule  would  be  adopted 
in  relation  to  the  examination  of  those  who  had  not  heard  all 
the  testimony,  and  also  in  relation  to  the  proper  forms  of  ques- 
tions to  be  put. 

The  court  then  informed  the  respective  counsel  that  medical 
witnesses  who  had  heard  the  principal  facts  of  the  case  and 
enough  of  the  testimony  to  form  an  opinion,  might  be  examined 


ORANGE,  JULY,   1854 


Lake  v.  The  People. 


although  they  had  not  heard  all  the  testimony,  and  that  the 
question  might  be  put  to  them  whether  from  the  testimony  they 
considered  the  prisoner  insane  when  the  homicide  was  commit- 
ted; but  that  the  counsel  would  not  be  permitted  to  ask  whe- 
ther if  certain  facts  and  circumstances  were  true  it  indicated 
insanity. 

Dr.  Richard  Jl.  Varick  was  then  sworn  for  the  defence  and 
testified  as  follows:  I  have  heard  the  testimony  this  morning; 
I  think  it  indicates  a  condition  of  insanity  at  the  commission 
of  the  act;  I  doubt  that  he  was  capable  of  knowing  what  he 
was  doing;  from  my  examination  I  think  there  is  undoubtedly 
derangement  of  the  brain  to  a  considerable  degree;  from  what 
I  have  observed,  I  think  he  is  not  in  a  sane  state  of  mind  now. 

The  defendant's  counsel  then  asked  this  witness,  "  What 
would  the  fact  that  at  the  time  of  the  killing  of  his  family,  the 
prisoner  destroyed  most  of  the  furniture,  broke  out  most  of  his 
windows  and  destroyed  the  window  sashes  indicate  to  your 
mind?"  To  this  question  the  counsel  for  the  prosecution  ob- 
jected and  the  court  sustained  the  objection  and  excluded  the 
question;  to  which  the  defendant's  counsel  duly  excepted. 

The  defendant's  counsel  then  asked  the  question,  "  What 
would  the  fact  that  the  prisoner  perpetrated  such  an  outrage  as 
is  indicated  in  the  previous  question  in  broad  day  light,  accom- 
panied by  no  attempt  to  escape  or  conceal  the  deed  indicate  to 
your  mind?"  To  this  question  the  counsel  for  the  prosecution 
objected,  and  the  question  was  excluded  by  the  court,  to  which 
decision  of  the  court  defendant's  counsel  thereupon  duly  ex- 
cepted. 

Witness  proceeded  —  My  reasons  are  his  inattention  to  his 
counsel,  his  apparent  indifference  to  his  situation;  wholesale 
murder  indicates  a  state  of  insanity;  have  seen  prisoner  in  jail 
three  times;  I  was  with  other  physicians;  there  is  nothing  to 
indicate  violent  passion  at  the  time  of  the  murder;  this,  with 
other  circumstances,  induces  me  to  think  him  insane  at  the  time 
of  the  offence. 

Cross-examined  —  The  symptoms  of  insanity  in  this  man  arc 
stupidity,  indifference  in  matters  concerning  life,  unsteadiness 


512  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

of  the  eye;  I  mean  by  stupidity,  that  he  seems  to  be  unaffected 
by  appeals  made  to  him;  he  don't  take  the  interest  in  the  pre- 
liminary steps  to  the  trial  that  I  should  suppose  he  would;  he 
could  probably  take  no  better  course  to  save  his  life;  I  don't 
rely  upon  that  entirely;  I  rely  upon  this  as  showing  a  continu- 
ation of  the  same  disease;  I  think  any  man,  who  kills  in  this 
way  without  sufficient  motive  insane;  a  man,  might  kill  in  a 
momentary  passion;  I  consider  that  revenge  might  be  a  sufficient 
motive;  acquiring  a  large  amount  of  property,  or  concealment 
of  a  previous  crime. 

On  his  cross-examination,  this  witness  was  asked  by  the  dis- 
trict attorney  the  following  question:  "Do  you  consider  killing, 
unless  with  apparent  motive,  prima  facie  the  act  of  an  insane 
man?"  To  this  question  defendant's  counsel  objected,  but  the 
question  was  admitted  by  the  court,  to  which  admission  defend- 
ant's counsel  then  duly  excepted. 

Witness  answered,  I  consider  killing  without  some  of  these 
motives  prima  facie  evidence  of  insanity;  I  have  considered  the 
man  insane  since  he  first  came  to  jail;  I  now  consider  him  in- 
sane but  can  not  say  to  what  extent;  a  person  may  be  insane 
»n  a  single  subject  and  sane  on  all  others  and  responsible  for 
his  acts;  as  far  as  I  can  judge  he  is  wholly  insane;  a  man  is 
able  to  do  a  rational  act,  if  he  is  wholly  insane,  and  may  be 
insane  while  he  does  that  act;  I  do  not  consider  Lake  a  mono- 
maniac; I  am  sufficiently  acquainted  with  insanity  to  give  an 
opinion  whether  he  was  insane  at  the  commission  of  the  act. 

By  the  Judge — I  get  my  experience  mostly  from  books  and 
partly  from  actual  .experience;  I  have  examined  his  physical 
situation  as  regards  insanity,  but  found  nothing  especial;  his 
struggles  while  going  in  and  out  of  court  are  worth  nothing  of 
themselves. 

Levi  Vincent  recalled — Prisoner  was  asked  by  Mr.  Moore  to 
come  down  from  where  he  was;  he  made  a  queer  reply,  and 
laughed;  he  was  asked  the  same  question  by  some  other  person 
and  made  the  same  sort  of  an  answer. 

Jonathan  Moore  sworn — I  was  at  Lake's  house  on  the  day 
of  the  murder;  I  was  requested  to  go;  got  there  about  1  o'clock; 


ORANGE,  JULY,  1853. 


Lake  v.  The  People. 


we  stopped  on  the  way  to  get  some  assistance;  when  I  first  saw 
him  he  remarked,  "  you  are  a  nice  Quaker;"  he  said  he  also 
was  a  Quaker  and  always  had  been;  I  asked  him  to  deliver 
himself  up;  he  repeated  my  name  twice  in  succession  in  a 
snetring  manner;  he  then  turned  around  from  the  window;  he 
had  a  sword  in  his  hand  which  he  kept  flourishing;  he  had 
nothing  but  a  shirt  on;  he  occasionally  called  aloud,  and  called 
me  by  name  in  a  sort  of  a  muttering  way;  a  few  days  previous 
he  was  on  examination  for  attempting  to  shoot  his  brother,  and 
he  wanted  me  to  attend,  but  I  told  him  that  I  could  be  of  no 
use;  that  he  had  better  get  a  person  to  go  his  bail  or  he  would 
be  locked  up;  he  said  that  was  impossible,  and  that  he  did  not 
want  a  bondsman;  I  told  him  I  would  come  according  to  his 
request  and  attend  his  trial;  he  stated  he  was  to  be  tried  for 
shooting  his  brotherinlaw. 

Cross-examined — His  reply  to  me  was,  "  Just  so,  Jonathan 
Moore,  down  m  the  mud;"  he  repeated  it  three  times. 

Elmore  Ji.  Vincent  sworn — I  saw  the  prisoner  in  the  road 
with  a  horse  and  wagon  about  the  middle  of  last  May;  when  I 
first  saw  him  he  was  walking  around  the  horse  and  wagon  in  a 
circle;  his  wife  and  child  were  with  him;  he  went  around  so  per- 
haps twelve  or  fifteen  times;  after  walking  awhile  so  he  got  in 
and  drove  forward  about  fifty  or  sixty  rods;  he  then  got  out, 
look  the  horse  by  his  head  and  turned  him  around  for  more  than 
ten  minutes;  he  then  let  the  horse  stand  and  walked  himself 
around  the  horse  and  wagon  about  eight  or  ten  times;  he  then 
got  in  and  drove  a  little  further,  and  then  got  out,  took  his 
horse  by  the  head  and  turned  around  again  about  as  long  as  he 
did  the  other  time;  he  then  got  in  and  drove;  went  out  of  sight; 
his  wife  drove;  have  not  seen  him  since  till  to-day. 

Cross-examined — 1  looked  at  him;  can  not  say  he  was  or  was 
not  intoxicated  at  that  time. 

William  Jible  sworn — Corroborated  the  evidence  of  E.  A. 
Vincent. 

George  Bostwick  sworn — I  saw  the  accused  on  the  28th  of 
April  last;  he  was  &n  his  place  at  work  making  fence;  I  ar- 

VOL.  I.  65 


514  DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


rested  him  and  brought  him  to  jail;  I  had  a  conversation  when 
I  brought  him  to  jail  about  security.  He  said  he  did  not  shoot 
at  his  brotherinlaw,  but  shot  it  a  crow;  he  staid  at  my  house 
one  night  in  the  month  of  May;  at  about  12  o'clock  at  night  I 
heard  a  noise  as  though  some  one  was  crying,  and  then  I  heard 
a  laugh — thought  it  was  him. 

Cross-examined — I  do  not  know  he  made  the  noise;  it  came 
from  that  direction. 

Isaac  Weeks  sworn — I  saw  prisoner  about  four  or  five  days 
before  the  commission  of  this  offence;  he  came  to  the  shoe  shop 
where  I  w?s  at  work  and  asked  for  some  shoe  thread;  he  asked 
for  one  ball  of  shoe  thread,  and  then  for  two;  we  handed  him 
two  balls;  he  looked  at  them  for  a  moment  and  then  threw  them 
both  on  the  floor;  he  then  looked  at  them  for  a  moment  and 
picked  one  up,  paid  for  it,  and  went  away;  he  was  in  the  habit 
of  coming  for  shoe  thread,  but  not  for  quite  awhile;  he  never 
acted  so  before. 

Dr.  Charles  H.  Jindrus  sworn — I  have  examined  Lake  since 
he  has  been  in  jail;  the  first  time  I  saw  him  was  two  wrecks 
since;  he  was  sitting  on  his  bed,  with  a  testament  in  his  hand, 
open;  he  did  not  appear  to  take  much  notice  of  us.  His  coun- 
sel told  him  we  had  come  in  to  talk  with  him  about  his  trial; 
asked  him  if  he  knew  he  was  to  be  tried  for  the  murder  of  his 
wife  and  children;  he  took  no  notice  of  what  was  said;  his 
pulse  was  regular;  he  paid  no  attention  to  the  question,  what 
book  he  was  reading;  we  undertook  to  take  the  book  away,  but 
he  would  not  give  it  up;  his  counsel  asked  him  if  he  knew  what 
the  effect  of  his  being  brought  in  guilty  would  be;  it  had  no 
effect  in  quickening  his  pulse;  we  could  perceive  no  emotion; 
we  were  in  the  cell  one  half  or  three  quarters  of  an  hour;  he 
did  not  speak  a  word;  we  took  the  book  from  him  by  pulling  it 
away.  I  was  there  three  or  four  days  after  with  Dr.  Hillis;  we 
found  him  standing  in  his  ceil  opposite  his  window;  we  said, 
George,  how  do  you  do  to-day?  he  replied,  I  guess  George  is 
pretty  well;  his  pulse  was  quicker;  he  was  asked  if  he  knew  he 
was  going  to  be  tried  for  killing  Hannah,  arid  what  he  had  to 
say  for  himself;  he  said  1  e  had  enough  to  say  when  the  time 


ORANGE,  JULY,   1854. 


Lake  v.  The  People. 


come;  I  think  the  expression  was,  "  George  can  tell  for  him- 
self." Dr.  Hillis  asked  him  what  book  he  was  reading  the  last 
visit;  he  made  no  reply:  the  Doctor  got  the  book  and  asked  him 
if  he  thought  it  was  a  good  book,  and  if  he  found  consolation 
in  it;  he  said  the  consolation  was  there,  and  it  might  stay  there. 
I  asked  him  if  he  knew  where  his  children  were;  he  said  be 
hoped  in  a  great  deal  better  place  than  he  was.  This  was  ac- 
companied with  a  kind  of  laugh.  Dr.  Hillis  asked  him  if  he 
was  aware  of  the  consequences  of  his  being  brought  in  guilty; 
he  took  no  notice  of  it;  he  was  asked  if  he  knew  he  must  be 
hung;  he  said,  "  if  they  must  hang,  they  must  hang,"  with 
another  laugh.  One  of  us  asked  how  he  could  be  so  jolly  ou 
such  a  serious  matter;  he  said  it  was  a  serious  matter,  laughing 
heartily;  he  said  he  did  not  know  when  he  was  brought  here; 
he  only  knew  he  was  here,  with  a  peculiar  kind  of  expression 
of  countenance  and  more  sober  than  usual.  I  was  there  again, 
there  was  very  little  difference  between  the  second  and  third 
interview;  he  was  not  so  talkative.  When  we  came  away  one 
of  us  took  him  by  the  hand,  and  he  commenced  weeping,  and 
while  the  tears  were  coursing  down  he  broke  out  into  an  unna- 
tural laugh;  this  continued  a  few  moments;  when  asked  what 
was  the  matter,  he  made  no  reply:  he  hesitated  to  give  me  his 
hand;  he  reached  out  his  hand,  and  said  it  was  in  a  poor  con- 
dition to  take  hold  of,  and  when  Dr.  Hillis  took  hold  of  his 
hand,  he  commenced  sobbing  aloud.  When  I  next  saw  him 
Dr.  Varick  was  with  us;  he  paid  no  attention  to  the  question 
what  he  wanted  done;  he  was  asked  if  he  really  did  kill  Hannah 
and  the  children;  he  said  with  a  laugh,  there  was  more  than  my 
hands  in  that.  I  say,  unhesitatingly,  that  he  is  insane;  I  have 
heard  the  testimony  which  has  been  given  to-day;  after  hearing 
the  testimony  I  can  say  that  it  is  my  opinion  that  he  was  in- 
sane at  the  time  of  the  occurrence. 

Cross-examined — t  had  formed  an  opinion  before  I  heard  the 
testimony  that  he  was  insane  at  the  time  of  the  occurrence;  I 
pronounce  this  "  homicidal  mania/"  I  mean  a  disposition  to 
destroy  not  only  human  life  but  everything  else;  as  far  as  I  am 
able  to  judge,  be  is  wholly  insane;  I  considered  the  answers 


516  DECISIONS  IX  CRIMINAL  CASES. 

Lake  v.  The  People. 

which  he  gave  me  in  jail  were  irrational,  that  is,  the  particular 
words  were  not  always  irrational,  but  the  manner  of  giving 
them;  I  was  never  in  there  withont  one  of  his  counsel.  His 
counsel  said  once,  that  we  had  come  to  see  if  he  was  insane; 
but  not  the  first  time;  we  did  not  talk  freely  in  his  presence; 
the  remark  about  our  coming  to  see  if  he  was  insane  was  made 
I  think  on  the  third  visit;  the  symptoms  are  an  inattention  to 
what  is  said;  a  want  of  correct  reasoning;  there  are  peculiar 
expressions  of  the  eye:  I  see  it  in  Lake;  a  peculiar  position  of 
the  head,  holding  it  forward  with  a  sort  of  blank  expression  of 
countenance;  he  would  go  from  one  extreme  to  another,  laugh- 
ing or  weeping  immoderately  without  assignable  cause;  I  don't 
think  a  person  could  feign  insanity  and  keep  it  up  for  several 
hours;  sleeplessness  is  one  of  the  accompaniments  but  not  ne- 
cessarily a  symptom;  insane  persons  are  often  troubled  with 
constipation;  most  insane  persons  are  not  as  sensitive  to  bodily 
injury  as  sane  persons.  Persons  afflicted  with  "  homicidal 
mania"  may  be  sensible  of  right  and  wrong,  but  unable  to  con- 
trol themselves.  One  peculiarity  which  I  observed  in  this  case 
was  when  a  person's  nostrils  are  dry  it  is  impossible  to  start  the 
secretion  in  the  nose  instantly  as  in  this  case,  when  commencing 
to  weep. 

By  the  Judge — I  noticed  an  odor  which  I  have  noticed  about 
insane  persons  who  were  confined;  the  increase  in  the  beats  of 
his  pulse  might  have  been  caused  by  his  physical  exertions 
while  we  were  there;  there  is  a  sort  of  shining  and  at  the  same 
time  an  intellectual  dullness  in  his  eye;  his  head  is  in  a  different 
position  from  what  is  usual. 

Direct  resumed — I  should  place  no  reliance  on  the  peculiar 
odor  spoken  of,  only  in  connection  with  other  circumstances. 

Dr.  M.  H.  Ranney  sworn — I  reside  at  the  New  York  city 
lunatic  asylum;  have  been  there  nearly  seven  years;  have  had 
over  3000  insane  persons  under  my  care;  I  have  examined  the 
prisoner  twice  in  his  cell  with  Dr.  Brown;  on  entering  the  cell 
the  prisoner  was  at  the  window;  he  was  spoken  to  but  paid  no 
attention  to  us;  he  commenced  walking  backward  and  forward 
in  his  cell;  after  a  time  he  went  to  the  door;  placed  his  back 


ORANGE.  JULY,  :854. 


Lake  v.  The  People. 


against  it,  using  sufficient  force  to  throw  it  open,  although 
some  one  was  behind  it,  and  attempted  to  rush  down  stairs,  but 
he  was  brought  back  to  his  cell;  he  said  it  was  unfair  to  treat 
a  man  in  that  manner,  and  said  he  wanted  to  go  down  stairs 
and  see  his  brother-in-law  below.  He  answered  some  few  ques- 
tions, but  refused  to  give  any  answers  in  relation  to  the  com- 
mittal of  the  homicidal  act;  I  could  obtain  but  little  from  his 
conversation;  there  is  a  dullness  about  him  and  no  disposition 
to  talk,  and  he  seemed  to  take  but  little  interest  in  things 
around  him;  I  thought  he  was  insane  or  simulated  insanity;  I 
examined  him  this  morning  in  relation  to  matters  generally;  he 
conversed  passably  well,  and  while  he  was  answering  Doctor 
Brown  I  took  down  his  answers  formally;  it  made  no  difference 
in  his  answers;  the  subject  was  farming:  most  of  his  answers  to 
the  questions  were  correct  When  we  referred  to  the  homicidal 
act  he  would  not  give  a  direct  answer.  I  conceived  there  might 
be  a  hidden  delusion  which  he  was  unwilling  to  express;  from 
this  last  examination  I  came  to  the  conclusion  that  he  wras  not 
simulating  insanity,  because  it  would  require  considerable 
knowledge  of  the  disease  to  keep  up  the  symptoms  in  a  con- 
versation; the  forms  commonly  simulated  are  acute  mania  and 
stupidity;  he  did  not  simulate  either  of  these  forms:  they  ge- 
nerally overact  when  they  simulate,  but  his  answers  were  very 
proper  except  on  the  subject  of  the  homicide.  One  can  hardly 
distinguish  insanity  from  the  eye  alone  or  from  the  expression 
of  the  face  alone;  have  heard  all  the  testimony;  form  my  opinion 
from  the  testimony  presented  and  from  my  examination;  I  re- 
gard it  as  sufficient  evidence  that  he  was  insane  at  the  time  he 
committed  the  act  and  is  insane  now;  if  Mrs.  Johnson's  testi- 
mony was  omitted  or  had  not  been  given,  my  belief  would  still 
have  been  that  he  was  insane.  The  reasons  of  my  opinion  are 
based  on  the  eccentricities  which  existed  previous  to  the  act, 
which  were  the  initiatory  acts;  from  the  want  of  an  adequate 
motive  for  the  killing  of  the  children,  and  from  his  present 
condition. 

Cross-examined-  —  The  symptoms  of  mania  after  the  act,  weie 
his  appearing1  naked,  his  flourishing  the  sword  which  he  called 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


the  sword  of  Washington,  his  not  attempting  to  escape:  these 
were  the  principal  causes;  there  is  a  vague  expression  of  the 
eye,  nothing  which  I  can  mark  particularly;  from  the  manner 
in  which  he  carries  his  head  alone,  it  would  not  seem  he  was 
insane;  his  answers  in  relation  to  agriculture  were  correct;  he 
made  no  foolish  answers  that  I  can  remember:  he  answered  on 
all  subjects  except  on  this  act;  he  is  not  insane  generally;  it 
must  be  a  monomania,  or  a  delusion  of  some  kind,  or  a  case  of 
homicidal  mania  proper,  which  is  characterized  by  irresistible 
impulse.  My  impression  is  that  there  is  some  concealed  delu- 
sion, that  is  a  belief  in  the  existence  of  an  object  which  does 
not  exist;  a  person  may  be  under  the  influence  of  this  delusion 
and  be  capable  of  judging  of  what  is  right  and  wrong;  a  person 
might  believe  in  spiritual  knockings  and  yet  not  be  insane; 
that  may  not  constitute  insanity;  that  may  be  a  delusion  and 
yet  not  an  insane  delusion;  in  an  insane  delusion  the  senses 
will  not  correct  them;  a  delusion  might  influence  other  subjects; 
his  actions  when  Mrs.  Phillips  was  in  the  house  were  evidences 
of  insanity;  the  eccentricities  which  existed  before  the  act  were 
premonitory.  If  I  saw  this  man  in  any  place  and  he  had  not 
committed  any  act,  and  I  had  not  been  told  of  his  being  sus- 
pected of  simulation,  I  should  have  pronounced  him  insane:  I 
have  seen  him  laugh  and  weep  without  apparent  cause. 

Direct  resumed  —  The  circumstance  of  his  sitting  on  the  bu- 
reau and  his  laughing  and  crying,  showed  a  nervous  state,  or 
the  initiatory  symptom. 

Dr.  David  T.  Brown  sworn  —  I  am  connected  with  the  Bloom- 
ingdale  lunatic  asylum;  have  had  about  one  thousand  under  my 
charge;  if  the  testimony  is  true,  and  taking  that  in  connection 
with  my  examination  with  Dr.  Ranney,  I  am  satisfied  that  he 
was  insane  at  the  time  of  the  homicide,  and  is  insane  now;  the 
manner  of  killing,  his  conduct  after  the  act,  his  destroying  the 
furniture,  his  conversation  with  the  officer,  his  subsequent  taci- 
turnity, his  general  avoidance  of  reply  in  relation  to  the  mur- 
der, his  general  deportment  in  his  cell,  are  consistent  with  the 
supposition  of  insanity,  and  most  of  them  inconsistent  with  his 
sanity.  I  believe  him  to  be  insane;  I  have  seen  three  or  four 


ORANGE,  JULY,  1854. 


Lake  v.  The  People. 


acts  of  feigned  insanity ;  I  have  no  suspicion  of  its  being  feigned; 
they  usually  overact. 

Cross-examined — His  conversing  freely  with  the  officer  is 
consistent  with  insanity;  in  his  cell  he  answered  few  questions 
on  the  first  days;  the  fact  that  he  declined  answering  in  relation 
to  the  homicide  is  consistent  with  sanity  or  insanity;  there  was 
one  remark  made  in  the  cell  by  one  of  his  counsel  which  I 
thought  was  very  unlucky,  as  it  might  put  him  on  his  guard;  I 
never  saw  a  man  who  was  entirely  insane  on  every  subject  ex- 
cept an  idiot;  he  may  be  rational  on  one  subject;  he  is  not  a 
monomaniac;  I  think  that  some  delusion  exists  upon  his  mind; 
that  is  only  my  supposition.  A  person  can  be  sane  on  some 
subjects  and  insane  on  others;  I  think  this  delusion  is  something 
connected  with  his  wife  and  children. 

Direct  resumed — The  remark  made  by  Mr.  Hale  left  the  im- 
pression which,  if  he  was  feigning  insanity,  might  put  him  on 
his  guard. 

By  the  Judge — It  is  a  common  thing  in  insane  asylums  for 
an  insane  person  to  refrain  from  speaking  of  circumstances 
or  acts  which  he  has  committed.  I  don't  think  he  could  simu- 
late insanity  without  imitative  talent  of  a  high  order,  or  a  long 
and  close  observation  of  cases  of  insanity;  his  actions  in  court 
arc  most  consistent  with  insanity. 

The  prisoner's  counsel  here  produced  a  mortgage  between 
George  Lake  and  Joseph  Potter  for  $150 — recorded  June, 
1850. 

Dr.  William  Thomas  sworn — I  have  visited  the  prisoner 
within  eight  or  ten  days;  visited  him  twice;  we  could  get  but 
little  out  of  him;  he  talked  but  very  little  both  times;  I  believe 
I  have  heard  all  the  testimony;  I  think  he  was  insane  before  the 
act,  at  the  time  of  the  act,  and  at  the  present  time;  when  I 
asked  him  questions  he  would  mutter. 

Cross-examined — I  think  he  is  insane  now,  from  his  general 
course  of  behaviour;  from  his  refusal  to  talk,  and  resistance  to 
any  questions  which  have  been  asked  him;  I  judge  that  he  was 
insane  at  the  time  of  the  act  from  the  act  itself  and  the  general 
testimony  of  the  witnesses;  I  had  not  made  up  my  mind  before 


520  DECISIONS  IN  CRIMINAL  CASES. 

Lake  r.  The  People. 

I  heard  the  testimony;  from  the  act  itself  I  could  not  form  an 
opinion. 

Egbert  Carey  sworn — This  witness  corroborated  the  evidence 
of  Elmore  A.  Vincent  in  relation  to  prisoner's  strange  conduct 
with  a  horse  in  May  last. 

Henry  Rikert,  sheriff,  sworn — I  saw  prisoner  when  he  was 
in  jail  before;  don't  know  that  I  noticed  anything  in  his  con- 
duct peculiar,  with  the  exception  of  once;  then  I  heard  him 
crying  in  his  room;  asked  what  was  the  matter;  he  made  some 
reply,  don't  recollect  what;  told  him  to  make  himself  comfortable 
and  we  would  use  him  well;  he  was  shedding  tears;  have  seen 
him  often  since  and  have  spoken  to  him,  but  he  hardly  ever 
since  gave  me  an  answer;  it  made  no  difference  whether  I  was 
alone  or  with  company;  for  the  last  two  or  three  weeks  he  ap- 
pears more  friendly;  asked  him  one  morning  to  give  me  his 
bone,  meaning  his  hand:  he  gave  me  a  bone  which  he  had  in 
his  pocket  and  laughed  as  though  he  had  done  something 
smart;  always  speak  to  him  when  I  go  in;  seldom  get  an  answer; 
have  always  treated  him  kindly;  have  had  no  trouble  with  him; 
Ferguson  had  charge  of  him  previous  to  our  chaining  him; 
have  had  no  trouble  with  him  since  Ferguson  left,  except  to 
push  him  in  his  cell  when  he  came  into  the  hall. 

Cross-examined — Had  no  more  trouble  with  him  before  Fer- 
guson left  than  since;  when  we  put  the  chain  on  him,  he  went 
three  days  without  eating;  after  that  he  took  his  meals  regular; 
he  seemed  angry  when  we  put  the  chain  on  him;  sometimes  he 
appeared  irritated,  and  at  other  times  laughed  when  we  forced 
him  to  his  room;  don't  know  but  he  slept  well.  One  morning 
when  he  was  down  stairs  I  spoke  to  him  and  told  him  he  had 
better  go  back;  when  we  took  him  his  breakfast  he  asked  why 
he  would  not  be  allowed  to  stay  down  stairs;  he  said  he  would 
hurt  no  one,  and  would  attend  to  his  own  business  if  we  would 
leave  him  there,  but  if  the  boys  in  the  lower  hall  did  not  want 
him  there  he  would  go  up:  I  let  him  stay  down  all  that  day;  it 
was  several  weeks  after  he  was  committed  before  we  chained 
him. 

Rubsrt  G.  Mooney  sworn — I  have  seen  Lake  frequently  since 


ORANGE,  JULY,  ib54.  53  j 


Lake  v.  The  People. 


he  has  been  in  jail,  especially  for  the  last  six  weeks;  he  has 
been  rather  surly,  as  a  general  thing  he  made  no  reply:  I  went 
in  with  Mr.  Hale  a  number  of  times  and  he  was  treated  as 
others;  went  in  once  when  he  appeared  quite  talkative;  I  re- 
member Mr.  Hale  asking  him  if  he  should  come  in  and  see  him 
alone;  those  who  were  in  jail  huddled  around  us.  Mr.  Hale 
said  several  times  that  he  was  his  counsel  and  wished  to  assist 
him;  he  made  no  reply. 

Cross-examined — He  never  told  me  that  some  person  had  told 
him  how  to  act;  I  think  he  has  generally  taken  his  meals  regu- 
larly; I  suppose  he  has  slept  regularly. 

Direct  resumed — I  can't  say  whether  he  has  slept,  or  whether 
he  has  eat  regularly. 

T.  C.  Campbell  sworn — Have  visited  the  accused  five  or  six 
times;  have  attempted  to  converse  with  him.  The  first  time,  I 
went  in  with  Dr.  Barnes;  have  talked  with  him,  and  he  answered 
every  question;  we  asked  him  if  his  arm  was  painful;  he  said  it 
was  and  assigned  the  reason:  don't  recollect  all  the  questions 
we  put  to  him;  asked  him  if  he  knew  me;  he  said  yes;  never 
saw  him  when  he  was  mute;  he  always  answered  every  question 
put  to  him  in  my  presence;  don't  remember  of  ever  seeing  the 
man  before. 

Here  the  defence  was  closed,  when  the  following  rebutting 
evidence  was  given  in  behalf  of  the  prosecution: 

Alfred  Van  Vlack  sworn — Live  at  Union  Vale;  have  known 
prisoner  about  six  years;  was  present  at  his  house  on  the  se- 
venth day  of  June  last  when  he  was  arrested;  heard  Jonathan 
Moore  say  to  Lake,  "  George,  I  want  thee  to  come  down  and 
give  thyself  up  like  a>  man."  George  remarked,  "  Jonathan 
Moore,  thee  is  a  nice  Quaker."  Moore  repeated  the  question 
he  before  asked,  and  added,  if  he  would  come  down  he  would 
stand  By  him.  George  replied, "  Yes,  Jonathan,  thee  will  stand 
by  me  and  they  all  will  stand  by  me."  Lake  was  up  stairs  at 
a \vindow;  I  think  I  heard  him  say,"  I  have  committed  inurderj 
they  lay  there  in  front  of  the  house  and  the  first  man  that  touches 
it  I  will  kill."  Don't  think  he  cried;  he  appeared  to  be  watch- 
ing from  one  window  to  another j  appeared  to  be  walking 

VOL.  I.  66 


DECISIONS  IX  CRIMINAL  CASES. 


Lake  ».  The  People. 


around;  believe  there  were  three  windows  in  that  part  of  the 
house;  we  went  inside  of  the  house;  knocked  up  one  of  the 
boards  in  the  upper  floor;  prisoner  then  walked  backwards  and 
forwards  along  this  hole;  once  or  twice  run  his  sword  down 
through;  heard  the  report  of  a  gun;  looked  up  through  the  hole; 
he  stood  up  in  a  leaning  position.  I  then  went  in  the  room;  he 
sat  on  the  floor,  his  head  leaning  on  his  knee;  he  remarked, 
"Can  it  be  possible  it  has  come  to  this!"  I  remarked,  "  Yes, 
George,  it  has  come  to  this."  He  was  wounded;  he  arose  and 
made  one  or  two  steps  and  fell  down  on  the  floor;  he  jumped 
up  from  the  floor,  took  a  circle  around  the  room,  fell  partially 
against  the  wall,  and  let  himself  on  the  floor.  I  then  took  hold 
of  him  and  with  others  took  him  out  of  the  house.  He  made 
no  resistance.  He  was  laid  on  a  bed;  he  dropped  his  under 
jaw  down.  I  got  water  and  washed  him  off;  he  did  not  get 
up.  The  next  morning  I  remarked  to  him  that  his  wife  was 
not  dead.  He  said,  "  How  can  that  be?"  I  told  him  it  was  so. 
I  think  he  then  said,  "  I  thought  she  was  dead  when  I  left  her." 
I  told  him  we  were  going  to  bury  his  children  and  asked  him 
if  he  had  any  choice  as  to  where  we  should  put  them.  He  said 
he  had.  Asked  him  where?  He  said  he  should  like  to  have 
them  buried  where  he  was.  He  said  that  if  he  had  got  out  he 
would  have  made  a  hole  through  some  of  us;  that  the  old  sword 
was  a  good  one,  and  he  could  defend  himself.  He  said  he  re- 
membered he  had  executed  a  deed  to  his  wife,  and  if  the  papers 
had  been  left  where  they  were  this  would  not  have  taken  place. 
The  conversation  about  the  sword  was  next  morning  after  the 
occurrence.  I  noticed  nothing  peculiar  about  his  eyes;  at 
times  he  would  talk  at  random:  have  known  him  for  about  six 
years. 

Cross-examined  —  I  think  the  sword  was  a  light  horse  sword. 
The  blade  was  about  eighteen  inches  long:  it  was  an  old  one, 
and  I  think  rusty.  At  times  on  that  day  he  made  a  good  deal 
of  noise;  sometimes  he  would  halloo  out  loud,  sometimes  laugh; 
don't  remember  to  have  seen  him  dance;  went  there  between 
twelve  and  one  o'clock;  between  fifteen  and  twenty  persons 
there:  he  was  asked  the  question  if  he  had  given  his  wife  a 


ORANGE,  JULY,  1854. 


Lake  v.  The  People. 


deed  of  the  place;  he  said  he  had;  the  remarks  he  niade  about 
the  deed  were  in  answer  to  questions  put  to  him;  he  sometimes 
hallooed  when  we  talked  to  him;  he  made  a  hooting  kind  of 
noise;  sometimes  laughed  loud  while  they  were  talking  to  him. 

William  Van  Vlack  sworn  for  prosecution — Know  prisoner; 
knew  him  about  fifteen  years;  have  seen  him  frequently  during 
the  last  year;  before  this  occurrence  the  last  time  I  saw  hire, 
was  in  jail  about  three  or  four  weeks  before;  we  spoke  about 
getting  bail;  I  proposed  it.  He  said  if  I  could  get  a  person  to 
go  his  bail  he  would  take  it  as  a  great  kindness.  I  discovered 
nothing  irregular  about  him;  nothing  about  the  eye.  The  next 
conversation  I  had  was  upon  his  examination  for  this  crime; 
saw  him  at  his  house;  then  he  said,  "  There  is  Squire  Van 
Vlack,  justice  of  the  peace/'  The  examination  was  commenced 
in  the  afternoon  and  adjourned.  After  the  witnesses  were 
through  I  told  him  he  might  say  what  he  wanted  to  without 
oath:  he  said  he  would  tell  all  about  it;  he  looked  down  about 
half  a  minute  and  then  looked  up  and  said,  *'  No,  I  shall  say 
nothing  about  it;  I  guess  the  least  I  say  about  it  the  better  it 
will  be  for  me."  I  noticed  nothing  peculiar  in  his  appearance 
Know  Catherine  Johnson. 

While  this  witness  was  on  the  stand  the  district  attorney 
offered  to  introduce  in  evidence  the  record  of  conviction  and 
imprisonment  of  Catherine  Johnson  for  petit  larceny  in  1827. 
To  the  admission  of  this  record  defendant's  counsel  objected: 
1.  Its  antiquity;  2.  Want  of  proof  of  the  identity  of  the  person 
so  convicted  with  the  witness  Catherine  Johnson.  This  ob- 
jection was  overruled  by  the  court,  and  the  record  admitted  in 
evidence,  to  which  decision  of  the  court  defendant's  counsel 
thereupon  duly  excepted. 

H.  C.  W.  Watts  sworn — I  am  deputy  clerk.  The  paper  here 
produced  was  filed  June  30,  1827;  the  paper  shows  that  Cathe- 
rine Johnson  was  convicted  of  petit  larceny  and  committed  to 
the  county  jail. 

The  district  attorney  then  asked  William  Van  Vlack,  "Was 
she  ever  in  the  county  jail?"  To  this  question  defendant's  coun- 
sel objected  as  not  being  the  best  evidence,  but  the  court  over- 


LECISIONS  IX  CRIMINAL  CASES. 


Lake  v    The  People. 


ruled  the  objection  and  allowed  the  question  to  be  asked,  to 
which  decision  of  the  court  defendant's  counsel  duly  excepted 
The  witness  then  answered,  "  I  think  I  saw  Catherine  Johnson 
locked  up  in  the  county  jail." 

Cross-examined — I  know  nothing  about  Mrs.  Johnson's  cha- 
racter except  what  I  have  heard;  have  heard  her  spoken  of  by 
her  neighbors  within  the  past  year. 

Direct  resumed — Her  general  character  is  not  good. 

Cross-examined — Have  heard  my  brother  and  his  wife  speak 
of  her  general  character;  don't  remember  of  any  one  else.  I 
live  between  two  and  three  miles  from  her.  From  what  I  have 
heard  my  brother  and  his  wife  say,  I  should  not  place  confidence 
in  her:  can't  say  as  I  should  believe  her  under  oath. 

Dr.  John  Cooper,  Jr.,  sworn — I  have  attended  on  Lake  since 
he  has  been  in  jail:  I  have  seen  him  four  or  five  times.  I  have 
seen  him  in  court:  have  conversed  with  him.  I  think  he  is  sane 
now.  I  have  heard  a  portion  of  the  evidence;  probably  half  of 
it;  heard  part  of  it  yesterday.  The  counsel  for  the  prosecution 
here  asked  this  witness,  "  From  the  testimony,  was  the  pri- 
soner, in  your  opinion,  sane  or  insane  at  the  time  he  committed 
the  homicide?  To  this  question  the  defendant's  counsel  ob- 
jected on  the  ground  that  the  witness  had  not  heard  all  the 
testimony. 

The  court  then  asked  the  witness  the  question,  "  Have  you 
heard  enough  of  the  evidence  to  form  an  opinion?"  This 
question  was  objected  to  by  defendant's  counsel,  but  was  put  by 
the  court,  to  whi»h  defendant's  counsel  duly  excepted.  The 
witness  then  answered,  "  I  think  I  have  heard  enough  of  the 
testimony  to  believe  he  was  not  insane  when  he  committed  the 
act."  To  the  admission  of  which  answer  by  the  court  defend- 
ant's counsel  then  and  thereupon  duly  excepted.  Witness  then 
proceeded:  "The  day  he  arrived  I  asked  him  how  he  was  in- 
jured; he  said  he  was  shot -r I  asked  him  who  shot  him.  I  forget 
whether  he  answered  me  or  not;  he  said  his  arm  pained  him;  I 
took  the  bandage  off.  The  next  day  when  I  went  in  he  did  not 
answer  questions  so  readily  as.  the  day  before;  I  asked  him  if 
he  felt  easier;  he  said  he  did.  I  think  he  was  not  insane  it  the 


ORANGE,  JULY,   1854.  535 


Lake  v.  The  People. 


time  he  committed  the  act;  the  first  time  I  saw  him  I  thought 
he  was  sane.  When  I  heard  of  the  crime  I  thought  at  rirst  he 
must  be  insane  to  commit  such  an  act." 

Cross-examined — I  read  Levi  Vincent's  testimony.  Think  I 
heard  part  of  his  testimony;  I  form  my  opinion  from  what  I 
have  heard  and  read;  I  read  it  from  the  daily  press. 

The  defendant's  counsel  here  excepted  to  the  testimony  of 
this  witness's  opinion  in  regard  to  Lake's  sanity  at  the  time  of 
the  commission  of  the  alleged  murder,  on  the  ground  that  it 
was  partly  formed  from  what  he  had  read  of  the  evidence. 

The  counsel  for  the  defendant  then  offered  to  ask  the  follow- 
ing questions  of  this  witness: 

1.  If  a  man  should  cut  open  the  head  of  his  wife,  (or  the 
woman  he  lived  with  and  treated  as  his  wife,)  and  child  two 
years  old,  in  the  middle  of  the  forenoon,  and  beat  out  the  brains 
of  another  child  four  years  old   at  the  same  time,  thus  killing 
his  whole  family  and  all  within  his  reach,  would  that  in  your 
judgment  furnish  any  evidence  of  insanity? 

2.  If  at  the  same  time  he  should  destroy  his  clock,  bureau, 
chairs,  and  most  of  the  other  furniture  in  his  house  with  an  axe 
or  other  like  instrument,  break  out  all  the  windows  in  the  room 
where  he  was,  destroy  the  window  sashes   and  throw  the  bed 
and  bed  clothes  out  of  doors,  would  you  consider  that  any  evi- 
dence of  insanity? 

3.  If  he  should  do  all  this  in  broad  day  light,  and  make  no 
attempt  to  conceal  the  deed  or  escape,  but  should  stay  by  the 
remains  of  those  he  had  killed  with  a  murderous  weapon  in  his 
hand,  what  would  that  indicate? 

4.  If  he  should  be   found  immediately  after  the  deed  at  the 
scene  of  the  slaughter,  with  no  clothing  on  but  a  short  cotton 
garment  resembling  a  woman's  night  gown,  in  that  condition 
should  stand  by  an  open  window  directly  over  the  bodies  of  one 
of  his  children  and  its  mother,  whom  he  had  killtd,  and  should 
say  when  asked  what  he  had  been  doing,  "  Go,  see  what  I've 
been  doing j  I've  been  separating  the  black  from  the  white," 
pointing  to  the  dead  bodies  as  he  said  itj  what  would  that 
indicate? 


526 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  ».  The  People. 


5.  If  a  short  time  after  this,  the  same  day,  he  should  be  seen 
singing  and  dancing  in  the  same  room,  in  the  same  condition 
as  to  clothing,  laughing  boisterously  and  crying  alternately  all 
the  while,  making  a  great  noise,  and  should  come  to  the  win- 
dow with  a  sword  in  his  hand  and  say  in  a  loud  voice,  "This  is 
the  sword  of  Washington,  all  who  are  in  the  right  way  shall  be 
saved,  and  those  who  are  not  shall  perish,  or  words  to  that  effect, 
what  would  that  indicate? 

6.  If  while  he  was  conducting  himself  in  the  manner  indica- 
ted in  these  inquiries  he  should  be  shot,  and  after  bleeding  pro- 
fusely should  appear   more  calm    and  rational,  and   on  being 
arrested  immediately  afterwards,  should  confess  the  murder  and 
state  particularly  how  lie  killed  each  member  of  the  family, 
would  this  induce  you  to  change  your  opinion? 

7.  If  on  the  day  of  his  arrest  an  officer  in  attendance  upon 
him  should  ask  him  if  he  hadn't  given  his  wife  (or  the  woman 
he  lived  with  as  his  wife)  a  deed  of  the  homestead,  (a  place 
worth  $200  or  $300,)  and  if  he  didn't  want  her  to  give  it  up 
to  him,  and  if  she  didn't  refuse  and  if  that  wasn't  the  reason  he 
killed  her,  and  he  should  say  it  was,  and  should  add  on  being 
asked  why  he  killed  the  children,  that  since  he'd  begun  the  job 
he  thought  he'd  finish  the  breed,  or  words  to  that  effect,  what 
would  that  be  indicative  of? 

8.  If  the  night  before  the  killing,  his  conduct  was  so  strange 
and  unusual  that  his  family  became  alarmed,  and  complained 
of  his  being  crazy  to  the  neighbors,  would  this  circumstance 
tend  to  confirm  you  in  your  opinion? 

9.  If  he  had  been  seen  by  his  neighbors  on  different  occasions 
a  week  or  two  before  the  murder,  driving  his  horse  and  wagon 
round  in  a  circle  without  any  apparent  motive,  what  would  this, 
taken  in  connection  with  the  other  circumstances,  indicate? 

10.  If  while  confined  in  jail  under  indictment  for  murder,  he 
should  generally  persist  in  keeping  silent,  refusing  to  commu- 
nicate with  his  counsel,  though  repeatedly  and  earnestly  urged 
to  do  so,  and  on  the  few  occasions  that  he  spoke  at  all  should 
talk  incoherently,  speak  of  himself  in  the  third  person,  be  ap- 
parently unconscious  of  his   situation  and  unaffected  by  any 


ORANGE.  JULY,   18-34. 


Lake  v.  The  People. 


remarks  on  the  nature  of  his  crime  or  descriptive  of  it,  laughing 
and  crying  alternately  without  any  apparent  cause,  as  if  unable 
to  control  his  feelings,  what  would  that  indicate? 

11.  If  his  general  appearance  and  conduct  at  the  time  of  the 
murder  were  such  as  is  indicated  by  these  inquiries,  have  you 
any  doubt  he  was  insane? 

12.  Have  you  any  doubt  he  was  so  insane  as  not  to  know  he 
was  doing  wrong? 

13.  Have  you  any  idea  he  could  have  feigned  it  all? 

14.  If  he  had  been  feigning  it,  would  he  not  have  been  very 
likely  to  have  continued  feigning,  after  he  was  shot? 

15.  Is  not  the  circumstance  of  his  appearing  more  calm  and 
rational  after  he  was  shot  and  bled  so  freely,  a  rather  conclu- 
sive proof  that  his  previous  conduct  was  unfeigned? 

16.  If  he  had  a  motive  or  supposed  he  had,  however  inade- 
quate, was  not  the  fact  of  his  shedding  more  blood  than  was 
necessary  lo  accomplish  his  object,  in  other  wrords,  killing  all 
within  his  reach,  one  of  the  strongest  characteristics  of  insanity? 

17.  If  feigned,  would  not  his  conduct  in  his  cell  be  uniform? 
Each  and  every  of  the  questions  above  stated,  offered  by  the 

defendant's  counsel  to  be  asked  of  this  witness,  were  by  the 
court  excluded,  to'  which  decision  of  the  court  upon  each  and 
every  of  the  questions  above  stated,  defendant's  counsel  duly 
excepted. 

Witness  proceeded — I  heard  a  portion  of  the  testimony  of 
Mrs.  Phillips;  I  heard  the  testimony  of  his  laughing  and  crying 
the  night  before;  heard  of  his  sitting  on  the  bureau;  alternate 
laughing  and  crying  are  symptoms  of  insanity;  have  been  in 
practice  nearly  five  years;  have  had  some  experience  in  treating 
insane  persons;  have  had  from  twenty  to  thirty  at  a  time  under 
my  charge  at  the  county  House  for  the  last  three  years. 

John  B.  Oakley  sworn — I  have  known  Lake  about  four  yearsj 
saw  him  the  day  before  this  occurrence;  he  was  at  his  house. 
I  had  some  papers  to  serve  on  him.  Am  a  constable:  had  pre- 
viously served  papers  on  him  in  the  same  suit.  Hubbard  Dun- 
can was  with  me.  Lake  was  in  the  upper  room  looking  out  of 
the  window.  I  told  him  I  would  like  to  have  him  come  down, 


528  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

as  I  had  some  business  with  him.  He  asked  me  what  it  was. 
I  told  him  I  had  an  assignment  I  wanted  him  to  put  his  name 
to;  he  said  he  believed  he  would  not  put  his  name  to  any  papers. 
I  said  if  he  would  not  put  his  name  to  that  paper,  I  had  ano- 
ther to  serve  on  him.  I  then  commenced  to  read,  and  he  began 
to  make  a  noise;  I  stopped  reading  for  a  moment,  till  he  got 
still:  he  made  a  sort  of  laughing  noise.  I  then  read  the  paper 
through,  and  told  him  I  had  a  copy  to  leave  with  him;  he  told 
me  he  would  like  to  see  me  get  to  him;  I  then  went  away;  the 
last  time  I  saw  him  before  that,  he  was  in  a  hovel  skinning  a 
cow.  This  was  about  four  weeks  before  I  called  to  serve  the 
papers.  I  saw  him  at  Verbank  the  day  after  I  was  there  the 
first  time;  I  saw  him  once  after  this  before  I  served  the  papers 
the  last  time. 

Cross-examined — -He  was  driving;  his  wife  was  with  him; 
she  had  one  rein  and  he  the  other.  I  saw  him  and  served  the 
paper.  He  made  a  sort  of  blowing  noise:  he  stamped  with  both 
feet.  I  told  Duncan  we  might  as  well  go  away.  Lake  said 
"Yes,  there  are  plenty  of  roads."  He  spit  at  me  when  I  started 
to  go  away. 

Direct  resumed — He  commenced  his  noise  when  I  commenced 
reading;  he  stopped  after  I  did  and  commenced  again  when  I 
commenced  to  read 

Joseph  Potter  sworn — I  live  at  Lagrange;  have  known  Lake 
ten  or  twelve  years.  I  am  the  Joseph  Potter  spoken  of  in  the 
mortgage  in  evidence;  saw  the  prisoner  in  jail  after  this  occur- 
rence; I  had  a  mortgage  against  his  real  estate;  also  one  against 
his  personal  property.  I  told  him  I  wanted  something  done 
about  the  matter;  he  said  I  could  do  as  I  pleased.  I  asked  him 
if  I  had  not  better  go  on  and  sell;  he  said  he  did  not  know  but 
what  I  had;  I  told  him  that  if  I  sold  the  whole  there  would  be 
a  balance,  and  asked  him  what  I  should  do  with  it;  he  said  pay 
his  debts  so  far  as  it  would  go.  I  sold  all  the  personal  pro- 
perty covered  by  my  mortgage;  there  yet  remains  due  some 
sixty  dollars. 

Cross-examined — Was  not  at  the  prisoner's  house  on  the  day 
ol  the  murder. 


ORANGE,  JULY,  1854. 


Lake  v.  The  People. 


W.  Vincent  sworn — I  was  at  Lake's  house  about  three  o'clock 
on  the  day  of  the  occurrence.  J  did  not  hear  Lake  say,  "  All 
those  who  are  in  the  right  shall  be  saved  and  those  who  are  not 
shall  perish."  I  sawLevi  Vincent  have  a  hammer  in  his  hand; 
I  heard  Jonathan  Moore  talking  with  Lake;  I  saw  Lake  after 
he  was  brought  in  the  house  after  he  was  arrested.  I  asked 
him  what  made  him  kill  his  wife;  he  said  if  she  had  given  up 
the  papers  there  would  have  been  no  trouble.  I  know  Cathe- 
rine Johnson;  I  have  heard  her  general  character  spoken  of  as 
bad;  I  don't  know  as  I  can  name  any  one  who  has  spoken  of  it. 

George  Bostwick  recalled — I  am  an  officer  attending  court; 
after  we  got  the  prisoner  in  his  cell  yesterday,  he  said,  "  You 
had  a  nice  time  of  it,  didn't  you?"  I  told  him  he  had  not  ought 
to  have  acted  so;  it  would  not  help  his  case;  he  said  he  thought 
it  would.  After  I  left  him  he  spoke  to  me  and  said  he  wished 
me  good  luck;  he  made  a  good  deal  of  resistance  when  we  were 
taking  him  to  his  cell  and  tried  to  trip  me  up. 

Cross-examined — He  tried  to  trip  me  up  several  times;  his 
hands  were  fast;  he  made  an  effort  to-day  to  trip  me  down. 

Dr.  Samuel  Dodge  recalled — Was  in  Lake's  cell  once  since 
the  trial;  have  known  him  several  years;  visited  his  family; 
noticed  him  in  court  and  believe  him  sane;  I  personally  know 
him  enough  to  form  an  opinion;  I  think  prisoner  sane.  The 
counsel  for  the  prosecution  then  asked  this  witness  whether 
from  the  testimony  he  regarded  the  prisoner  sane  or  insane  at 
the  time  of  the  commission  of  the  offence?  To  this  question 
defendant's  counsel  objected,  because  witness  had  not  heard  all 
the  testimony,  but  the  question  was  admitted,  and  defendant's 
counsel  duly  excepted.  The  witness  then  answered,  "  I  think 
he  has  feigned  insanity;  think  he  was  sane  when  he  committed 
the  crime;  he  might  have  been  mad. 

Cross-examined — The  idea  of  insanity  I  have  is  an  aberration 
of  the  mind.  The  general  symptoms  of  insanity  are  different; 
sometimes  they  are  still,  sometimes  noisy:  if  he  had  been  insane 
at  the  time  he  committed  this  offence,  he  would  tell  of  it  now, 
tninking  he  had  done  his  duty;  if  he  was  insane  then  he  would 
talk  about  the  crime  now  as  much  as  upon  other  subjects.  The 

VOL.  I.  67 


530 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


ataxy  of  his  pulse  is  something  of  a  test  as  is  an  odor  so  pecu- 
liar to  insane  persons;  this  is  not  of  itself  a  test.  '  I  don't  think 
the  fact  stated  in  Mr.  Moor's  testimony  an  evidence  of  insanity, 
as  it  might  be  feigning.  There  is  a  difficulty  in  detecting 
feigned  insanity.  Defendant's  counsel  asked  this  witness  the 
following  questions: 

Is  the  fact  that  the  prisoner  is  at  one  time  silent,  refusing  to 
speak  for  a  long  time,  and  then  becomes  communicative  for  a 
while,  any  evidence  of  insanity?  This  question  was  objected 
to  by  the  counsel  for  the  prosecution,  and  excluded  by  the 
court,  to  which  exclusion  defendant's  counsel  thereupon  duly 
excepted. 

Dr.  John  Thorn  affirmed — Am  a  physician;  know  Lake;  saw 
him  first  at  Verbank  on  a  trial;  examined  him  then;  have  seen 
him  three  times  since  the  murder;  have  seen  him  in  court;  have 
watched  him  pretty  closely.  I  think  him  sane;  have  heard  all 
the  testimony  since  Levi  Vincent  was  recalled;  have  formed  an 
opinion  as  to  his  insanity  at  the  time  of  the  tragedy.  Have 
made  up  my  mind  that  he  was  sane  at  the  time  he  committed 
the  act. 

Cross-examined — Have  had  experience  in  treating  insane  per- 
sons. The  appearance  of  the  prisoner  the  night  before  the 
occurrence  is  not  in  my  opinion  a  symptom  of  insanity.  The 
killing  of  all  within  his  power  is  not  of  itstlf  a  symptom  of 
insanity;  it  is  not  a  very  easy  matter  for  a  man  in  Lake's  con- 
dition in  life  to  imitate  insanity;  think  he  might  deceive  a  man 
of  the  experience  of  Dr.  Ranney;  a  man  remaining  on  the 
ground  and  conducting  himself  as  Lake  did,  is  not  of  itself  an 
indication  of  insanity;  have  heard  and  read  of  the  rifle  and 
furniture  being  damaged,  the  window  smashed  out,  &c.  On  his 
cross-examination,  the  counsel  for  the  defendant  asked  this  wit- 
ness the  following  question:  Do  sane  persons  kill  without  a 
motive?  To  this  question  the  district  attorney  objected,  and 
his  objection  was  sustained  by  the  court,  to  which  defendant's 
counsel  duly  excepted. 

This  witness  was  then  asked  by  the  court,  "  Do  you  think 
the  conduct  of  Lake,  as  described  by  the  witnesses,  in  evidence 


ORANGE,  JULY,  1854.  53 j 


Lake  c.  The  People. 


of  insanity?  To  this  question  defendant's  counsel  objected,  on 
the  ground  that  this  witness  had  not  heard  all  the  evidence  a* 
to  Lake's  conduct,  but  the  objection  was  overruled,  and  the 
question  asked,  to  which  defendant's  counsel  duly  excepted. 
The  witness  then  answered  that  he  did  not  This  witness  fur- 
ther said,  on  his  cross-examination,  "  I  consider  the  fact  of  the 
prisoner  trying  to  defend  himself  an  evidence  of  sanity;  consider 
the  fact  of  his  stabbing  his  sword  through  the  floor  an  evidence 
of  sanity." 

Edward  Horton  sworn — I  have  seen  Lake  in  jail;  saw  him 
play  cards  in  there;  he  has  done  so  off  and  on  for  five  weeks; 
he  can  count  game  as  well  and  as  good  as  any  one  else;  have 
seen  him  do  so  a  great  many  times;  he  understands  the  game 
and  is  a  pretty  good  player;  he  has  beat  me  as  often  as  I  have 
beat  him;  this  took  place  in  his  cell  When  he  was  playing  he 
would  talk  about  the  game:  he  first  asked  if  there  were  any 
cards  in  the  jail.  I  told  him  I  thought  there  were;  he  said  he 
should  like  to  have  a  game:  we  played  seven  up.  I  was  in  jail 
at  that  time;  was  there  about  five  weeks.  Lake  was  not  out  in 
the  hall  but  a  few  times.  Charles  Harvey,  James  Horton, 
and  myself  were  there;  he  would  talk  and  laugh;  never  saw  him 
cry  but  once,  and  that  was  when  Mr.  Hale  and  two  doctors 
were  there:  never  said  anything  to  him  about  his  trial;  never 
heard  anybody  talk  to  him  about  anything  but  cards;  don't  re- 
collect of  telling  any  person  of  this.  Talked  to  Mr.  Campbell 
about  this  subject  about  fifteen  minutes  ago. 

Mrs.  Elizabeth  Harvey  sworn — I  have  been  in  jail  a  few  days 
past;  my  husband  is  there;  I  came  down  to  see  him;  his  name 
is  Charles  E.  Harvey;  I  saw  prisoner  while  I  was  there;  I  saw 
him  playing  cards  with  one  of  the  other  prisoners.  They  calli'd 
him  Jerry;  it  was  in  a  cell,  but  not  in  the  one  the  prisoner 
occupies;  heard  Lake  say  something  about  the  cards;  never  saw 
it  but  once;  I  came  here  a  week  ago;  I  think  they  were  play- 
'ng  Saturday  afternoon. 

Cross-examined — There  was  something  said  about  the  cards; 
George  said  something,  about  the  cards;  I  saw  Lake  last  July; 
JJP  did  not  say  anything;  the  sheriff  told  me  it  was  Lake;  I 


532  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

heard  other  prisoners  talk  to  him;  can't  recollect  his  replies;  I 
have  told  Mr.  Mooney  what  I  have  heard  said  to  Lake;  when 
I  saw  George  playing  cards,  my  husband  was  in  the  cell;  I  had 
nothing  to  do  with  the  game. 

Jacob  C.  Ferguson  sworn — I  live  in  Poughkeepsie;  I  was 
jailer  up  to  the  18th  of  August;  was  jailer  both  times  Lake 
was  brought  in;  I  recollect  the  time  of  Lake  crying:  he  under- 
took to  come  out  of  the  lower  door,  and  I  put  him  back  up 
stairs;  I  asked  him  if  somebody  had  not  been  putting  him  up 
to  go  out;  he  said  he  had  been  told  that  I  had  no  right  to  keep 
him  there;  that  I  was  only  playing  the  fool  with  him;  he  ate 
pretty  regular  except  when  he  got  mad  at  us,  and  one  time  he 
went  without  eating  two  days;  I  don't  know  anything  about 
his  sleeping.  I  was  there  when  an  affidavit  was  read  to  him 
in  relation  to  putting  off  his  trial;  William  Wilkinson  was 
there,  and  George  H.  Tompkins;  Mr.  Wilkinson  read  over  the 
affidavit  and  he  did  not  understand  it;  then  Mr.  Tompkins  read 
off  the  affidavit;  he  read  over  a  clause  and  asked  if  it  was  right; 
so  he  read  one  or  two;  he  read  another  one;  and  George  said 
he  did  not  know  about  that,  but  his  lawyer  ought  to  know;  the 
next  clause  he  said  he  did  not  know  about;  after  an  explana- 
tion he  assented  to  it;  he  went  through  the  affidavit  that  way; 
he  then  went  to  the  window  and  made  his  mark  to  it;  I  wrote 
his  name  and  he  made  his  mark;  the  clerk  then  administered 
the  oath;  he  did  sometimes  refuse  to  talk  to  his  counsel:  the 
first  time  Mr.  Wilkinson  went  up  George  did  not  speak  to  him; 
I  told  Goorgethat  Mr.  Wilkinson  wanted  to  defend  him  and  he 
ought  to  talk  to  him;  Mr.  Wilkinson  went  up  and  he  talked 
a  little  to  him;  Mr.  Wilkinson  said  he  wanted  to  talk  alone 
with  him;  I  went  out. 

Cross-examined — I  went  up  with  Mr.  Hale^  I  made  an  effort 
to  induce  him  to  talk;  he  would  hot;  he  went  in  several  times 
and  could  not  get  him  to  talk;  I  told  him  Mr.  Hale  was  assigned 
as  his  counsel;  we  made  repeated  attempts  to  get  him  .to  talk 
but  could  not  succeed;  I  think  I  have  heard  him  speak  to  Mi. 
Wilkinson  once  before  the  affidavit  \vas  made,  I  think  a  day  or 
two,  it  might  have  been  the  same  day;  I  think  Mr.  Wilkinson 


ORANGE,  JULY,  ISO*. 


Lake  v.  The  People. 


said  he  came  to  talk  about  the  trial;  Mr.  Wilkinson  said  he  did 
not  want  anything  said  about  what  he  said  to  George.  I  don't 
recollect  any  reply  that  George  made;  I  think  he  did  not  reply, 
I  am  not  positive.  Mr.  Tompkins  read  the  affidavit  and  ex- 
plained what  the  words  meant,  he  said  the  defendant  meant 
him;  I  can't  recollect  anything  else;  when  Mr.  Tompkins  read 
over  a  portion  of  it  he  said,  "  is  that  so,  George?"  I  think  he 
said  yes,  there  was  one  clause  he  said  he  did  not  know  about 
exactly;  several  times  he  would  abstain  from  eating;  once  he 
did  not  eat  for  four  days,  sometimes  two  or  three  days;  I  think 
I  was  a  jailer  until  the  18th  of  August,  I  left  because  the 
sheriff  and  I  did  not  exactly  agree. 

By  the  Judge — He  stopped  eating  for  a  spell  when  we 
chained  him;  he  went  without  eating  once  before. 

Cross-examined — One  day  I  asked  him  if  he  did  not  want  his 
pantaloons  on;  I  took  the  chains  off  so  he  could  put  them  on, 
he  made  a  dive  for  the  door  but  I  held  him;  I  punished  him;  1 
struck  him  with  my  clenched  fist  in  the  side  and  on  the  arm; 
he  said,  don't  strike  me,  I  will  behave. 

Dr.  Peter  Barnes  sworn — Saw  prisoner  the  day  he  was  brought 
to  jail;  examined  him  in  his  cell,  thought  he  was  sane;  think 
so  yet;  think  he  is  sane  at  the  present  time;  did  not  see  him 
from  the  lime  he  was  put  in  jail  till  to-day. 

By  the  Court — He  seems  to  know  what  is  going  on;  should 
think  if  he  was  insane  he  would  not  understand  as  well  as  he 
appears  to. 

Dr.  Perlee  Pine  sworn — Saw  prisoner  first  the  day  he  was 
brought  to  jail,  have  seen  him  in  his  cell  twice,  examined  hiru 
the  first  time  with  the  intention  of  standing  by  him  at  his  trial, 
can't  call  him  insane  now;  think  him  sane  now;  when  I  first 
saw  him  he  was  asleep;  when  he  first  waked  up  I  thought  I 
saw  something  in  his  eye  that  betrayed  insanity,  but  afterwards 
thought  it  was  as  usual;  think  he  is  a  sane  man  now.  I  have 
heard. all  the  testimony  except  that  given  yesterday  morning, 
and  taking  all  the  testimony  and  ray  examination  into  con- 
sideration, I  should  not  think  he  was  insane  at  the  time  he 
committed  the  crime.  I  think  he  was  sufficiently  sane  then  to 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


know  what  he  was  about;  have  had  some  experience  in  treat- 
ing insane  persons:  have  from  twenty  to  thirty  insane  persons 
under  ray  charge  at  the  county  house. 

To  this  evidence  defendant's  counsel  duly  excepted,  on  the 
ground  that  witness  had  not  heard  all  the  testimony. 

Cross-examined — The  circumstances  of  his  appearance  after 
committing  the  crime  are  in  my  opinion  of  themselves  evidence 
of  his  insanit) ;  the  symptoms  of  insanity  are  a  deranged  in- 
tellect; don't  think  the  absence  of  the  appetite  is  of  itself  a 
symptom  of  insanity;  the  absence  of  sleep  is  not  in  my  opin- 
ion an  indication  of  insanity;  alternate  laughing  and  crying 
are  not  in  my  opinion  evidence  of  insanity;  don't  think  the 
circumstance  of  the  prisoner's  flourishing  his  sword  a  symptom 
of  insanity.  Last  Saturday  I  had  a  conversation  with  Lake  all 
alone  in  his  cell;  he  then  appeared  as  sane  as  any  other  person. 
I  have  noticed  the  prisoner  appears  to  notice  as  much  as  any 
one.  I  distinguish  a  sane  from  an  insane  man  by  his  not  being 
insane. 

Dr.  L.  H.  Allen  sworn — Reside  at  Owego;  have  been  a  phy- 
sician since  1820:  saw  Lake  first  last  Monday  afternoon;  ex- 
amined him  yesterday;  think  it  a  case  of  simulated  insanity 
at  the  present  time;  think  so  from  a  combination 'of  circum- 
stances; first  noticed  his  being  removed  from  the  court;  no- 
ticed his  appearance  in  his  cell;  his  general  deportment,  the 
absence  of  some  characteristics  of  acute  mania.  Upon  these 
things  I  formed  my  opinion.  I  found  a  disinclination  to  be  re- 
moved; the  characteristic  of  acute  mania  is  a  disregard  of  self. 

Cross-examined:  Have  no  extensive  experience  with  eases 
of  insanity;  had  my  attention  called  to  the  subject  by  having 
a  case  similar  to  prisoner's;  trial  commenced  the  8th  of  August; 
it  was  the  case  of  Thurston;  was  witness  for  defendant.  On 
the  last  trial  he  was  acquitted  on  the  ground  of  insanity;  don't 
know  as  the  indications  of  feigned  insanity  have  been  brought 
within  any  general  forms.  The  indications  of  insanity  are 
various;  the  symptoms  of  homicidal  mania  are  an  inclination 
or  desire  to  commit  an  injury  on  some  persons  without  any 
assignable  cause;  should  consider  the  killing  of  one  person  by 


OilAKGE,  JULY,   1504 


Luke  c.  The  People. 


another  without  any  motive  as  priina  facie  evidence  of  insanity; 
it  would  suggest  to  the  mind  of  the  medical  man  the  idea  of  in- 
sanity; one  of  the  most  reliable  symptoms  of  insanity  is  watch- 
fulness and  sleeplessness;  these  are  difficult  to  be  feigned  and 
are  very  reliable;  sometimes  insane  persons  will  refuse  to  eat; 
there  is  a  sort  of  consistency  in  the  acts  of  an  insane  person; 
should  expect  from  simulated  insanity  a  change  in  the  conduct; 
should  think  a  person  feigning  insanity  would  endeavor  to  ap- 
pear the  same  before  the  same  person  at  different  times  if  he 
could  remember  to  do  so;  persons  feigning  insanity  are  very 
likely  to  overact;  a  person  in  some  forms  of  insanity,  as  of  a  me- 
lancholy character,  is  apt  to  choose  his  victims  from  his  friends. 

Direct  resumed — I  had  a  conversation  with  the  prisoner  in 
jail  yesterday;  I  endeavored  to  draw  him  out  into  a  conversa- 
tion; sometimes  he  would  answer  me;  he  said  he  was  once 
acquainted  with  Mrs.  Johnson;  I  said  "  she  rather  slandered 
you,  didn't  she;  she  thought  you  was  crazy;  he  replied,  "  she 
has  a  pretty  good  head  on  her  shoulders  if  she  would  only  keep 
it  straight;"  my  brother  was  in  there  with  me;  he  did  not 
know  who  we  were. 

Cross-examined — Have  seen  the  prisoner  only  o  ice,  that  was 
yesterday. 

Dr.  E.  W.  Tollman  sworn — Have  known  prisoner  about 
18  months;  have  visited  professionally  in  his  family  at  the  con- 
finement of  his  wife;  have  seen  him  fix  watches  and  clocks  at 
his  house;  conversed  with  him  some;  he  is  intelligent  for  the 
name;  have  examined  to  see  as  to  his  condition;  can't  help 
but  think  he  is  sane;  have  heard  most  all  the  testimony;  from 
the  testimony  and  my  knowledge  of  the  man  I  think  he  was 
sane  when  he  committed  the  act. 

Cross-examined — Have  seen  Lake  in  prison  four  times;  saw 
him  in  prison  this  morning;  there  is  no  satisfactory  evidence 
to  me  that  he  was  insane  when  he  committed  the  act. 

Dr.  J.  Cooper,  sworn — Have  been  a  practicing  physician 
since  1807;  have  never  examined  prisoner;  have  seen  him  in 
court  to-day,  yesterday  and  the  day  before;  believe  him  sane 
now,  heard  most  o/ the  evidence. 


536  DECISIONS  IN  CRIMINAL  CASES 

Lake  v.  The  People. 

Defendant's  counsel  here  objected  to  the  opinion  of  this  wit- 
ness, on  the  ground  that  he  had  not  heard  all  the  testimony, 
but  the  objection  was  overruled  by  the  court,  to  which  defend- 
ant's counsel  then  duly  excepted. 

The  witness  then  proceeded  to  state:  In  my  judgment  he  was 
sane  when  he  c  uumitted  the  act,  I  am  satisfied  that  when  he 
came  to  prison  he  was  not  insane;  have  no  doubt  he  is  sane; 
have  not  seen  a  more  intelligent  eye  in  court;  believe  he  knows 
perfectly  well  what  he  is  about;  his  turning  around  the  wagon 
is  in  my  view  rather  an  evidence  of  insanity;  his  tearing  up 
the  furniture  is  in  my  view  a  premeditated  act  to  intimidate 
his  wife  and  make  her  give  up  the  property;  the  killing  of  his 
two  children  was  a  strange  act,  but  having  commenced  the 
operation  he  probably  thought  he  would  finish. 

Cross-examined — I  consider  his  whole  action  as  a  feigned 
insanity;  his  actions  on  the  road  were  strong  indications  of  in- 
sanity; it  is  not  often  that  a  state  of  insanity  comes  on  at  once; 
I  think  the  property  was  destroyed  to  induce  the  woman  to  give 
up  the  paper. 

The  prosecution  here  rested. 

The  counsel  for  the  defendant  then  called  Cyrus  Perkins  as 
a  witness,  who  testified  that  he  went  to  the  prisoner's  house  at 
about  one  o'clock  on  the  afternoon  of  the  7th  of  June.  When 
I  came  in  sight  of  the  house  I  saw  him  throwing  something 
white  out  of  the  window. 

I  saw  a  chair  or  two  and  a  piece  of  stove  pipe  out  doors; 
when  I  first  saw  him  he  was  in  the  upper  room  with  his  sword 
in  his  hand;  I  went  down  to  the  gate;  called  him  by  name  and 
asked  him  what  he  was  doing;  he  replied,  "you  see  what  I 
have  been  doing;"  pointed  down  to  the  bodies  and  said  "I've 
been  separating  the  black  from  the  white;"  the  windows  and 
the  window  sashes  were  broken  out;  the  clock  case  looked  as 
if  struck  with  something;  the  drawers  were  banged  to  pieces 
with  something;  I  should  judge  it  was  a  dull  axe.  The  work 
bench  was  marked  like  the  rest;  think  the  windows  were 
broken;  the  stove  pipe  was  down. 

William  Wilkinson  sworn — Lake,  the   accused  never  said  a 


ORANGE,  JULY,  1854. 


Lake  v.  The  People. 


word  to  me  neither  before  or  after  the  time  the  affidavit  was 
made,  in  reply  to  a  question  from  me;  he  has  never  given  me 
a  word  in  answer  to  a  question  from  me;  I  read  the  affidavit  to 
him,  but  he  made  no  response;  am  positive  he  did  not  say 
"  yes,"  to  a  question  from  Mr.  Tompkins. 

Cross-examined  —  I  brought  the  affidavit  into  court  and  read 
it  as  his  affidavit. 

Afterwards,  the  counsel  for  eth  defence  having  rested,  the 
court  charged  the  jury  as  follows: 

Gentlemen  of  the  jury  —  You  will  doubtless  approach  the 
examination  of  this  case  with  a  due  sense  of  its  importance  and 
of  the  responsibility  resting  upon  you.  The  prisoner  at  the  bar 
is  charged  with  the  violation  of  a  law  by  the  provisions  of 
which  his  life  has  become  forfeited.  You  stand  between  him 
and  that  offended  law.  If  he  is  innocent,  you  must  protect  him 
from  its  demands;  if  he  is  guilty,  you  are  required  by  your  duty 
and  by  the  sacredness  of  your  oaths,  to  pronounce  him  so  and 
deliver  him  up  to  that  just  punishment  which  his  crimes  call 
for  and  the  legislature  have  prescribed. 

It  is  frequently  a  difficult  question  in  cases  of  homicide  to 
determine  who  or  what  caused  the  death.  But  in  the  present 
case  we  are  not  embarrassed  with  any  doubts  on  this  subject. 
The  proof  is  clear  and  undisputed  both  from  the  testimony  of 
an  eye  witness  and  the  prisoner's  own  declarations,  that  he 
caused  the  death  in  question. 

We  therefore  turn  at  once  to  a  consideration  of  the  defence, 
and  in  doing  so  we  are  to  lay  aside  every  prejudice,  throw  off 
every  feeling  of  partiality  or  hostility,  disregard  every  symptom 
of  public  opinion  and  lay  aside  every  influence  and  consider- 
ation except  such  as  arise  fairly  and  legitimately  from  the  tes- 
timony before  us. 

The  burthen  of  the  defence  of  insanity  rests  upon  the  accused. 
Every  man  is  presumed  to  be  sane;  he  is  supposed  to  know 
what  he  is  about,  and  to  intend  every  thing  that  he  does,  and 
is  held  responsible  for  his  every  act. 

VOL.  I.  68 


53S  DECISIONS  IN  CRIMINAL  CASES 

Lake  r.  The  People. 

This  presumption  must  therefore  be  overcome  by  proof  esta- 
blishing the  existence  of  a  different  state. 

The  evidence  in  the  present  case  naturally  divides  itself  and 
will  accordingly  be  considered  under  the  following  heads: 

1.  The  nature  of  the  act.  2.  The  degree  of  motive.  3. 
Scientific  opinion.  4.  Conduct  of  the  prisoner. 

Touching  the  first  point  I  have  but  little  to  say.  It  is  con- 
tended that  the  fact  of  the  prisoner  killing  the  woman  with 
whom  he  cohabited  and  his  own  children,  is,  in  itself  evidence 
of  insanity.  This  argument  evinces  not  only  a  want  of  know- 
lenge  of  human  nature  and  of  the  springs  of  human  action,  but 
the  grossest  ignorance  of  the  history  of  mankind.  For,  from 
the  time  Cain  slew  his  brother,  down  to  this  day,  when  almost 
every  newspaper  brings  tidings  of  a  wife  killed  by  her  husband, 
or  children  by  their  parents,  all  experience  shows  that  no  ties, 
however  strong,  no  relation  however  sacred,  not  even  the  bonds 
of  affinity  and  consanguinity  could  withstand  the  wrath  of  an 
exasperated  man;  and  indeed  when  carefully  and  closely  con- 
sidered, the  domestic  relationship,  so  far  from  being  a  barrier 
against  violence,  invites  to  its  commission,  by  the  opportunity 
it  offers  and  the  helplessness  of  a  portion  of  its  inmates.  Those 
who  are  constantly  together  have  such  abundant  means  of  dis- 
covering the  offensive  traits  in  each  other's  disposition,  that 
love  not  unfrequently  degenerates  into  hatred  and  the  intimacy 
of  the  family  circle,  which  should  Jead  to  peace  and  happiness, 
too  often  furnishes  the  occasion  for  angry  irritations  and  colli- 
sions which  ultimately  terminate  in  violence  and  bloodshed. 
And  when  we  consider  in  addition  to  this,  the  numerous  evil 
minded  persons,  their  ungoverned  passions,  the  artificial  excite- 
ments to  which  they  resort,  we  can  hardly  be  surprised  that  a 
very  large  portion  of  the  homicides  occur  amongst  those  who 
are  connected  by  the  ties  of  family  or  of  blood.  Indeed,  it  is 
well  known  historically,  that  infanticide  or  the  murder  of  one's 
own  children  is  the  prevalent  crime  in  some  countries,  and  there 
is  too  much  reason  to  believe  that  it  is  too  frequent  in  this. 
Perhaps  my  views  may  be  colored  by  personal  observation. 

The  last  case  of  murder  tried  in  this  court  room  was  that  of 


ORANGE.  JULY,  : 


Lake  v.  The  People. 


a  woman  for  poisoning  her  husband;  the  other  one,  tried  at 
the  same  court,  was  that  of  a  man  for  killing  the  child  of  his 
wife.  Both  of  them  were  executed  in  July  of  last  year. 

In  June  last  a  man  was  tried  before  me  in  Brooklyn  for  beat- 
ing his  wife  to  death,  and  in  December  of  the  year  before  last, 
a  man  was  tried  before  me  in  Brooklyn,  who  stabbed  his  wife, 
his  mother  and  her  sister,  all  the  persons  present.  The  wife 
and  mother  were  killed  on  the  spot;  the  sister,  though  dan- 
gerously wounded,  survived  to  tell  the  story  on  the  witness's 
stand.  It  was  done  in  broad  daylight,  and  the  culprit  immedi- 
ately walked  out  of  the  house  and  surrendered  himself  up,  de- 
claring his  readiness  to  suffer  the  penalty  of  his  crimes.  No 
insanity  appeared  in  the  case,  and  he  was  executed  in  January, 
1852. 

To  say,  therefore,  that  a  man  will  not  kill  his  relations  un- 
less he  is  insane,  is  equivalent  to  saying  that  he  will  not  com- 
mit crime  unless  he  is  insane;  or  in  other  words,  that  there  is 
no  such  thing  as  crime,  inasmuch  as  its  wickedness  proves  its 
innocency;  it  is  hardly  necessary  to  add  that  such  a  doctrine  is 
subversive  of  all  order  and  safety,  and  does  away  with  the 
whole  administration  of  criminal  justice,  and  is  just  worthy  of 
the  source  whence  it  originated,  namely,  among  French  infidels 
and  German  metaphysicians  and  transcendentalists. 

2.  A  motive  for  the  killing  is  sometimes  an  important  if  not 
an  essential  point  on  a  trial  for  murder.  But  those  are  cases 
where  the  evidence  of  the  killing  is  circumstantial.  Then  it  is 
important  to  show  that  the  prisoner  had  a  motive,  with  a  view 
to  establishing  that  he  is  the  person  who  committed  the  act. 
But  in  cases  where,  as  in  this,  the  killing  is  undisputed,  the 
question  of  motive  becomes  less  important.  For,  the  mov- 
ing cause  is  often  not  very  apparent;  in  very  many  cases  of 
homicide  there  is  no  motive  discoverable,  except  what  arises 
at  or  near  the  time  of  the  act  Excited  passions,  or  a  desire 
for  vengeance  for  a  real  or  imaginary  insult  or  wrong,  not  un- 
frequently  lead  to  the  crime. 

If  a  case  should  arise  where  it  was  absolutely  certain  that 
there  was  no  motive  whatever  for  the  commission  of  the  crime, 


540  DECISIONS  IN  CRIMINAL  CASES. 

Lake  r.  The  People. 

il  would  undoubtedly  tend  to  show  insanity,  for  insane  persons 
are  the  only  ones  that  act  without  motives.  But  who  can  say 
there  is  no  motive?  Who  can  fathom  the  mind  of  the  accused 
and  ascertain  that  there  is  no  hidden  desire  of  vengeance,  no 
envy,  or  avaricious  passion  to  be  gratified? 

There  is  no  rule  of  law  which  determines  what  is  an  ade- 
quate motive,  even  where  it  is  necessary  to  show  one:  One 
man  will  kill  another  to  obtain  $1,000;  another  may  do  the 
same  for  a  tenth,  or  even  a  hundredth  part  of  that  sum;  in 
each  case  it  is  adequate  in  one  sense  for  the  mind  on  which  it 
operates.  But,  in  truth,  and  in  another  sense,  no  amount  is 
fairly  adequate  to  induce  a  reasonable  man  to  take  the  life  of 
another;  nothing  will  induce  a  reasonable  man  to  commit 
murder;  it  is  idle  to  talk  therefore  about  an  adequate  motive 
for  a  reasonable  man.  (See  1  Beck.  794.) 

What  motive  appears  in  the  present  case?  The  motive  said 
to  be  assigned  by  the  prisoner  himself  is,  the  desire  on  his  part 
to  obtain  certain  papers  or  title,  which  the  woman  refused  to 
deliver  up.  The  theory  of  the  prosecution  is  that  there  was  a 
controversy,  a  bone  of  contention  touching  the  title  to  the  place, 
which  furnished  the  basis  of  disagreement,  quarrels,  exaspe- 
ration, and  finally  personal  violence.  If  this  be  so  it  would 
undoubtedly  have  a  tendency  to  show  a  motive  such  as  may  be 
fairly  supposed  to  have  induced  the  act.  For  slight  causes  of 
contest,  however  unreasonable  or  unjust,  may  be  made  the 
ground  work  of  irritations,  which  may  be  wrought  up  by  the 
untoward  circumstances  between  irascible  dispositions,  until 
one  of  them  may  reach  the  point  of  uncontrollable  passion,  or 
in  other  words,  the  killing  point.  It  is  for  you  to  determine 
whether  this  theory  of  the  prosecution  is  sustained  by  the  evi- 
dence 

But  it  is  contended  by  the  defence,  that  even  admitting  a 
sufficient  motive  as  to  the  woman,  there  could  not  be  any  occa- 
sion for  destroying  the  children.  It  is  undoubtedly  contrary  to 
the  general  course  of  nature  for  a  man  to  murder  inoffensive 
children,  and  especially  when  they  are  his  own.  But  there  is 
another  principle  recognized  as  pertaining  also  to  human  na 


ORANGE,  JULY,  1854.  54  ± 


Lake  v.  The  People. 


ture;  and  that  is,  that  hatred  for  the  parent  is  often  extended 
to  and  visited  upon  the  offspring,  and  the  same  ungovernable 
rage  that  would  destroy  the  mother,  might  impel  the  offender 
also  to  involve  her  descendants  in  the  common  ruin;  upon  the 
principle  that  they  were  a  part  and  portion  of  the  detested  mo- 
ther, or,  as  the  prisoner  expressed  it, "  as  he  had  commenced 
the  job,  he  thought  he  would  finish  the  breed/' 

.'?.  We  now  come  to  consider  more  directly  the  question  of 
insanity  at  the  time  of  the  occurrence  as  it  stands  upon  the 
scientific  testimony. 

The  determination  of  this  question  is  often  attended  with 
great  difficulties.  The  precise  state  of  a  man's  mind  can  not  be 
easily  ascertained,  and  especially  is  it  difficult  to  discover  whe- 
ther alleged  insanity  is  real  or  feigned. 

The  principal  evidence  in  such  cases  must,  of  course,  be  the 
conduct  of  the  prisoner  himself. 

The  law  however  authorizes  the  admission  of  the  opinion  of 
experts,  which  includes  medical  men,  and  those  who  have  par- 
ticular care  of  the  insane,  and  therefore  are  supposed  to  be 
more  competent  to  judge  of  such  matters  than  ordinary  men. 

These  opinions  are  not  always  the  most  satisfactory.  They 
depend  for  their  value  partly  upon  the  skill  and  experience  of 
the  witness  and  partly  upon  the  opportunities  which  he  has 
possessed  of  observing  the  prisoner's  conduct.  A  skillful  man 
who  has  full  opportunity  to  see  the  parties  for  a  long  period, 
can,  probably,  in  most  cases,  ascertain  with  considerable  accu- 
racy whether  the  case  is  real  or  simulated  insanity;  but  a  mere 
occasional  observation  for  a  few  moments  may  leave  the  most 
learned  man  in  doubt  or  even  deceived. 

The  reason  of  this  uncertainty  is,  that  there  are  no  general, 
infallible  indications  of  insanity.  It  assumes  so  many  forms  and 
aspects,  that  no  general  rules  can  be  laid  down  for  its  detection. 

The  opinions  depend  also  for  their  influence,  as  evidence, 
upon  the  reasons  which  the  physicians  give  as  their  foundation. 
For,  if  a  witness  gives  you  an  opinion  and  accompanies  it  with 
a  reason  which  in  your  judgment  is  unsound,  you  will  be  jus- 
tified in  holding  the  opinion  unsound. 


542  DECISIONS  IN  CRIMINAL  CASES. 

Lake  c.  The  People. 

It  is  hardly  necessary  to  add  that  these  opinions  do  not  carry 
with  them  any  binding  authority.  They  are  mere  evidence  to 
be  weighed,  and  are  often  testimony  of  the  slightest  character 
and  weight.  You  perceive  that  the  doctors  differ  totally  in 
their  views  as  to  this  man's  testimony;  and  while  one  tells  us 
that  his  refusal  to  talk  freely  about  the  homicide  is  proof  of 
insanity,  another  tells  us  that  the  care  and  caution  which  he 
thus  evinces,  convinces  him  that  it  is  a  case  of  simulation.  In 
this  connection  I  will  read  an  extract  from  an  English  author 
touching  the  examination  of  medical  men,  which  may  perhaps 
throw  some  light  upon  Dr.  Pine's  testimony.  (Winslow,  7n, 
76.) 

The  same  remarks  are  applicable  to  the  books  which  are 
read  They  are  not  authorities  in  the  legal  acceptation  of  that 
term;  they  are  treatises  written'' by  men  professing  to  understand 
certain  subjects,  upon  which  they  choose  to  write  certain  books. 
It  is  perhaps  doubtful  how  much  credit  is  due,  without  any  evi- 
dence of  the  standing  and  skill  of  the  author.  That  they  are 
not  all  correct,  is  quite  apparent,  for  the  reason  that  they  con- 
flict with  each  other,  just  about  as  much  as  the  doctors  do  when 
they  are  called  as  witnesses.  Indeed,  there  is  no  reason  why 
we  should  expect  those  who  write  essays  for  pleasure  or  profit, 
should  be  confined  any  more  strictly  t^  the  truth,  or  be  found 
any  more  uniform  and  consistent,  than  if  they  were  under  the 
obligations  of  an  oath. 

It  is  proper  here  to  observe  that  every  aberration  of  mind  is 
not  such  an  insanity  as  protects  a  prisoner  from  responsibility. 
t  had  occasion  to  examine  the  subject  in  the  case  of  Wesley 
Pine,  who  was  tried  here  in  April,  1848,  and  will  read  a  por- 
tion oi  the  charge  delivered  on  that  occasion.  (2  Barb.  Sup, 
Ct.  Rep.  570,  572.) 

4.  The  principal  testimony  is  that  arising  from  the  prisoner's 
conduct,  comprising  his  words  and  actions.  It  has  been  laid 
before  you  fully  in  all  its  details.  The  counsel  on  both  sides  have 
had  full  scope  to  prove  all  that  he  did  or  said  at  the  time  of  the 
occurrence,  as  well  as  before  and  since.  You  will  take  up  this 
evidence  and  examine  it  carefully  and  bring  to  bear  upon  it  all 


ORANGi:,  JULY,  1854.  543 


Lake  v.  The  People. 


your  experience  and  knowledge  of  human  nature  and  of  the 
motives  and  sources  of  human  actions. 

It  seems  to  be  conceded  that  up  to  a  short  time  before  the 
seventh  of  June,  he  was  a  man  of  sound  mind,  attended  to  his 
ordinary  business,  took  care  of  his  family  and  passed  for  a 
rational  man. 

It  is  always  a  circumstance  of  some  suspicion  when  this  de- 
fence is  set  up,  if  it  appears  that  no  insanity  existed  until  the 
time  of  the  killing.  For  it  will  not  do  to  allow  a  man  to  go 
at  large  and  pass  for  a  sane  man  in  community,  and  be  capable 
of  dealing  with  his  fellow  men,  and  yet  the  moment  he  commits 
an  outrage  upon  society,  permit  him  to  throw  off  his  legal  re- 
sponsibility, without  clear  and  satisfactory  evidence  that  such 
change  is  real  and  involuntary 

I  will  now  advert  briefly  to  the  prominent  features  of  the  case 
without  however  detaining  you  by  recapitulating  the  details  of 
the  testimony. 

1.  The  first  marked  instance  of  eccentricity  occurred  some 
weeks  before  the  seventh   of  June,  and  was  seen  by  several 
witnesses:  I  allude  to  his  turning  around  in  the  road  at  the  time 
when  he  and  his  wife  and  child  were  riding. 

This  is  certainly  unusual  conduct.  It  is  altogether  out  of 
the  ordinary  course  and  shows  something  wrong  and  irregular. 

Two  theories  are  set  up  by  the  respective  counsel,  to  which 
they  respectively  claim  that  this  conduct  conforms. 

The  prisoner's  counsel  claims  that  it  can  be  reconciled  only 
with  mental  derangement.  The  prosecution  on  the  other  hand 
adopts  the  solution  given  by  Dr.  Cooper  yesterday,  that  it  was 
done  designedly  and  with  an  intention  to  affect  or  operate  upon 
his  wife. 

2.  Another  occurrence  is  spoken  of  by  Mrs.  Johnson,  who  tells 
us  of  his  walking  on  the  stoop  on  Monday,  the  day  before  the 
occurrence,  putting  his  hands  on  his  head,  crying  out  loudly  and 
weeping  on  his  wife's  neck;  the  natural  inference  to  be  drawn 
from  such  a  fact  alone  is  undoubtedly  that  the  man  was  labor- 
ing under  some  violent  pain  or  mental  disorder.     It  is  however 
to  be  observed  that  she  was  present  and  did  not  seem  to  care 


544 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


much  about  it,  nor  in  fact  to  pay  much  attention  to  it.  The 
witness  describes  her  as  sitting  on  the  door  step  engaged  in 
sewing. 

How  is  this  conduct  of  both  to  be  explained?  How  do  you 
account  for  the  apparent  indifference  of  the  woman?  Would 
she  have  been  thus  unmoved  if  she  had  supposed  him  really 
insane?  Or  was  she  aware  he  was  merely  playing  off  a  scheme 
upon  her  to  frighten  her  or  bring  her  into  his  measures  on  the 
subject  of  the  deed  or  any  other?  It  is  for  you  to  determine. 
It  is  undoubtedly  a  circumstance  of  some  moment,  that  nearly 
or  quite  all  of  his  eccentric  movements  were  made  in  the  pre- 
sence of  his  wife,  and  no  one  seems  to  have  discovered  anything 
extraordinary  in  his  deportment  when  he  was  alone  or  absent 
from  her. 

3.  His  conduct  on  Monday  afternoon,  when  Mrs.  Phillips  was 
present.     He  was  then  evidently  much  disordered;  he  refused 
to  talk  or  answer  questions,  but  sat  on  the  bureau  laughing  or 
crying,  talking  occasionally  to  himself:  the  woman  seemed  then 
to  be  alarmed,  but  still  her  fears  do  not  seem  to  have  reached  a 
height  sufficient  to  induce   her  to  seek  protection  from  others, 
or  shelter  elsewhere.     Others,  however,  were  greatly  alarmed, 
as  they  state.    Mrs.  Johnson  hastened  away,  and  one  of  the  men 
speaks  of  getting  over  the  fence  to  avoid  him.     Why  did  not 
her  fears  take  an  equally  tangible  shape?    Was  it  because  she 
was  a  woman  of  great  fearlessness?  or,  was  it  because  she  un- 
derstood the  matter  better  than  the  rest  of  them,  and  knew  that 
it  \sas  all  simulated?     It  is  for  you  to  say. 

4.  The  next  in  order  are  the  circumstances  discovered  after 
the  killing.     The  prisoner  was  found  in  the  second  story  of  the 
house,  standing  at  the  window,  the  sash  being  broken  out,  with 
no  clothes  except  a  white  night  gown,  flourishing  a  sword  and 
calling   it  the  sword    of  Washington,  making  a  great  noise, 
laughing,  singing  and  dancing  as  one  of  the  witnesses  states. 
All  this  is  clearly  inconsistent  with   a  sober,  steady,  well  dis- 
posed man.    But  it  is  for  you  to  say  whether  they  are  evidences 
of  insanity;  or  do  they  look  like  an  overacted  attempt  to  appear 
insane?  is  he  not  rather  too  crazy?  are  not  the  circumstances 


ORANGE,  JULY,  1854.  545 


Lake  v.  The  People. 


rather  exaggerated?  do  they  not  evince  rather  too  much  prepa- 
ration and  effort  to  produce  effect? 

It  is  true  that  when  a  man  who  commits  an  injury  flees  and 
attempts  to  escape,  it  is  strong  evidence  that  he  is  guilty,  that 
he  is  conscious  of  having  done  wrong,  and  therefore  it  repels  the 
idea  of  irresponsible  insanity. 

But  it  does  not  therefore  follow  that  omitting  to  escape  is 
conclusive  proof  of  insanity.  Because  at  this  day  when  this 
sort  of  defence  is  set  up  so  frequently,  the  whole  community 
become  unfortunately  impressed  with  the  notion,  that  this  de- 
fence is  ..o  be  relied  on  whenever  a  great  crime  has  been  com- 
mitted and  all  other  defences  fail;  and  it  is  not  to  be  deemed 
matter  of  surprise  that  a  man  who  has  suffered  his  passions  to 
lead  him  to  the  crime  of  murder  would  immediately  begin  to 
prepare  himself  for  such  a  defence  by  endeavoring  to  sustain 
the  character  of  a  madman.  Nor  when  the  chances  of  escape 
by  fleeing  or  by  standing  trial  on  such  a  plea  are  compared,  is 
it  certain  that  the  prisoner,  if  sane,  did  not  make  the  wisest 
choice.  But  let  us  look  at  the  testimony  a  little  more  closely; 
it  is  highly  important.  The  conduct  of  the  prisoner  immedi- 
ately after  the  killing  is  particularly  calculated  to  throw  light 
on  the  subject;  it  is  not  a  pure  question  of  science,  it  is  rather  a 
question  of  common  sense,  which  the  jury  is  supposed  to  possess 
in  quite  as  high  degree  as  professional  gentlemen.  The  theory 
of  the  defence  is  that  he  was  not  conscious  of  doing  wrong  when 
he  killed  this  woman  and  children,  and  to  that  extent  the  in- 
sanity must  go  to  shield  him  from  responsibility.  Now  what  is 
the  natural  consequence  of  the  doctrine?  Why,  if  he  did  not 
know  he  had  done  wrong  he  would  not  flee,  nor  have  any  rea- 
son to  prevent  others  approaching  him.  How  does  this  com- 
pare with  his  deportment?  Did  he  permit  others  to  approach 
him  and  act  as  if  he  supposed  nothing  wrong  had  occurred?  Or 
did  he  assume  an  attitude  of  defence?  Was  his  conduct  calcu- 
lated to  intimidate  and  terrify  those  who  came  to  arrest  him? 
It  did  so,  as  they  show.  Why  did  he  get  up  stairs  and  place 
himself  in  the  window,  brandish  his  sword,  advise  them  to  go 
away,  speak  of  having  fire  arms  and  refuse  to  come  down,  ex- 

VOL.  I.  69 


546  DECISIONS  IN  CRIMINAL  CASES. 

Lake  ».  The  People. 

cept  he  was  influenced  by  a  consciousness  of  having  committed 
crime,  and  that  the  others  had  come  to  arrest  and  punish  him? 
How  is  it  to  be  explained?  Can  it  be? 

It  is  true  that  the  rifle  was  thrown  away,  but  whether  it  was 
owing  to  the  fact  of  its  being  useless  for  want  of  ammunition 
does  not  appear.  It  is  contended  that  he  was  under  a  homicidal 
impulse  which  impelled  him  to  kill  all  within  his  reach.  But 
he  did  not  rush  among  the  crowd  that  surrounded  the  house  and 
cut  right  and  left  as  maniacs  sometimes  do:  he  seemed  quite 
satisfied  to  let  them  alone  if  they  would  keep  away  from  him. 

5.  His  conduct  in  prison,  his  general  taciturnity,  refusing  to 
talk  to  his  counsel,  and  resistance  of  the  officers  and  such  facts 
of  which  there  are  several,  have  all  been  laid  before  you.     The 
doctors  have  passed  upon  it  and  differ  entirely  as  to  their  con- 
struction of  the  testimony;  you  will  look  into  the  matter  and 
determine  which  are  right. 

6.  It  may  be  proper  to  advert  to  one  or  two  pieces  of  testi- 
mony which,  the  prosecution  claims,  show  sanity. 

The  communication  made  by  him  to  officer  Townsend  while 
in  custody,  and  the  fact  spoken  of  by  him  that  the  prisoner 
conversed  freely  until  he  was  consigned  to  jail. 

7.  You  also  have  the  fact  that  he  is  in  the  habit  of  playing 
;ards  in  prison. 

You  will  consider  these  circumstances  and  say  whether  they 
ire  or  are  not  reconcilable  with  the  theory  of  this  defence. 

8.  Something  has  been  said  about  the  affidavit  made  by  the 
prisoner  to  put  off  this  cause.     The  matter  has  been  spoken  of, 
probably  without  intention,  as  if  the  court  had  exacted  an  un- 
usual thing  from  this  man.     The  truth  is  simply  this:  When 
brought  into  court  he  would  not  speak  nor  pay  any  attention  to 
the  proceedings  of  the  court.     The  counsel  asked  to  have  the 
trial  put  over.     The   court  refused  to  put   it  off  without  the 
usual  affidavit,  for  the  reason  that  if  the  man  was  insane  no 
trial  could   be  had,  and  therefore  there  was  no  propriety  in 
sending  the  case  to  another  court  and  requiring  the  district 
attorney  to  bring  all  his  witnesses  here   again:  this  decision 
brought  out  as  we  supposed  it  would  the  affidavit  in  questiou 


ORANGE,  JULY,  1854.  547 


Lake  r.  The  People. 


Many  irrelevant  matters  have  been  brought  into  this  case 
"which  it  is  hardly  necessary  to  notice. 

It  has  been  asserted  by  counsel  that  the  plea  of  insanity  haa 
never  prevailed  in  any  case  where  the  prisoner  has  not  turned 
out  afterwards  to  continue  insane.  I  do  not  agree  with  the 
counsel  on  this  point;  but  I  content  myself  with  merely  saying 
that  it  has  nothing  to  do  with  the  case. 

Much  has  also  been  said  touching  the  supposed  illegal  con- 
viction of  the  colored  roan  Freeman.  I  have  never  seen  any- 
thing to  lead  me  to  the  conclusion  that  that  conviction  was  not 
well  founded  and  correct,  so  far  as  the  merits  and  facts  were 
concerned. 

It  is  true  that  Dr.  Brigham  and  others  were  of  the  opinion 
that  he  was  insane  and  so  testified  on  the  trial.  It  is  also  true 
that  on  a  post  mortem  examination  18  months  after  the  murder 
Dr.  Brigham  and  other  physicians  were  of  the  opinion  that  the 
brain  was  diseased,  so  as  to  produce  insanity.  But  they  were 
not  unanimous  on  this  point.  I  believe  moreover  a  diseased 
brain  in  August,  1847,  did  not  necessarily  prove  insanity  in 
March,  1846.  So  that  I  do  not  discover  any  good  grounds  to 
question  that  the  juries  who  decided  him  to  be  sane  at  the  time 
of  the  murder  were  fully  warranted  in  so  doing. 

But  whether  that  verdict  was  correct  or  not,  is  not  material 
in  this  case.  We  are  trying  Lake  and  not  Freeman. 

I  wish  further  to  add  that  the  remarks  I  have  made  on  the 
testimony  in  this  case  are  not  binding  upon  you;  you  are  to 
decide  the  question  of  fact  uninfluenced  by  any  supposed  opin- 
ions of  the  court.  I  have  made  such  remarks  as  I  considered 
appropriate  to  tfre  discharge  of  my  duty  in  pursuance  of  the 
laws  of  the  land.  The  question  of  the  duty  of  the  court  in  such 
cases  was  submitted  to  the  fifteen  judges  of  England  a  few 
years  ago,  when  they  returned  the  following  answer.  (The 
judge  here  read  from  1  Beck.  Med.  Jur.  772.) 

You  will  now  lake  this  case  to  your  room  and  carefully  weigh 
and  examine  the  testimony,  bringing  to  the  subject  an  honest 
and  sincere  desire  to  ascertain  the  truth.  If  the  evidence  satis- 
fies your  minds  that  the  prisoner  is  guilty,  you  must  say  so  by 


548 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


your  verdict  of  guilty.  If  however  it  leaves  upon  your  minds 
a  reasonable  doubt,  you  must  give  him  the  benefit  of  the  dovibt 
by  an  acquittal. 

To  \vhich  charge  and  every  part  and  portion  thereof  defend- 
ant's counsel  duly  excepted.  Defendant's  counsel  thereupon, 
and  before  the  issue  was  submitted  to  the  jury,  requested  the 
court  to  instruct  the  jury. 

1.  That  the  testimony  of  Washington  G.  Vincent  and  Wil- 
liam Van  Vlack  in  regard  to  the  general  character  of  Catherine 
Johnson,  does  not  impeach  nor  tend  to   impeach  that  witness, 
not  being  followed  by  testimony  as  to  her  character  for  truth, 
or  her  credibility  under  oath. 

2.  That  the  record  of  a  conviction  of  Catherine  Johnson  for 
petit  larceny  twenty-six  years  ago  does  not  affect  her  present 
credibility. 

3.  That  the  testimony  of  Levi  Vincent,  as  to  the  declarations 
of  Lake  on  the  day  of  the  killing,  being  uncontradicted,  and  he 
being  unimpeached,  is  worthy  of  belief. 

4.  Ditto  of  Jonathan  Moore. 

5.  That  the  calmness  of  prisoner  after  being  shot  and  bleed- 
ing, is  consistent  with  his  previous  insanity  and  inconsistent 
with  his  previous  feigned  insanity. 

6.  That  the   rational  conduct  of  the  prisoner   in   his  cell, 
rational  answers  to  questions,  and  card  playing  are  no  evidence 
of  feigned  insanity. 

7.  That  the  absence  of  any  proof  of  hereditary  insanity  is 
no  evidence  of  feigned  insanity.     But  the   court   refused    to 
charge  as  requested  on  each  and  every  of  the  points  last  above 
stated,  to  which  refusal,  defendant's  counsel  tnen  duly  excepted. 

The  jury  found  the  defendant  guilty. 

H.  fy  M.  Hale,  for-  plaintiff  in  error 

I.  The  court  erred  in  excluding  the  testimony  offered  in  re- 
lation to  the  acts  and  declarations  of  the  deceased,  the  night 
previous  to  the  alleged  murder.  It  is  not  necessary  that  the 
declarations  be  made  at  the  precise  time  of  the  act  in  question, 
in  order  to  constitute  part  of  the  res  gestee.  (2  Sttph.  JV*.  P. 


ORANGE,  JULY,   1854.  549 


Lake  v.  The  People. 


1564,  and  cases  there  cited;  Ross  v.  Bank  of  Burlington,  \ 
Aik.  43,  cited  1  Cow.  fy  Hill's  notes  594,  3d  Ed.  p.  215;  State 
v.  Crane,  2  Bail.  (S.  C.)  R.  66,  cited  1  Cow.  &  Hill's  notes,  604, 
3d  Ed.  p.  224;  Stewart  v.  TAe  Storfe,  19  0/ito,  302,  cited  2  fltm. 
on  Crimes,  750.)  The  conduct  of  the  prisoner  being  material 
evidence  upon  the  point  in  issue,  (his  sanity,)  and  evidence 
having  been  given  of  his  conduct  on  that  day  any  acts  or 
declarations  connected  with  that  conduct,  and  calculated  to 
explain,  unfold  or  throw  light  upon  it,  were  admissible  and 
material  evidence.  (Wright  v.  Doe  dem.  Tatharn,  4  Bing.  JV. 
C.  489,  and  S.  C.  33  Eng.  Com.  L.  Rep.  426;  1  Cow.  &  Hill's 
notes,  notes  444,  452  and  pp.  596,  604,  3d  Ed.  note  160  and  pp. 
217,  224;  1  Phil.  Ev.  (6th  Am.  Ed.)  189  and  190;  1  Starkie's 
Ev.  pp.  47,  48,  §§  28,  29;  1  Green.  Ev.  136,  note  and  cases 
cited;  Roscoe's  Crim.  Ev.  23,  note  and  cases  cited;  2  Runs,  on 
Crimes,  750;  2  Steph.  JV.  P.  1561.) 

II.  The  court  erred  in  excluding  evidence  that  the  deceased, 
the  night  before  the  homicide,  was  in  tears,  and  also  in  excluding 
evidence  as  to  the  expressions  of  alarm  made  use  of  by  the  de- 
ceased at  the  time.    That  the  alarm  of  the  deceased  was  proper 
evidence  in  the  case  is  shown  by  the  argument  based  upon  the 
assumed  absence  of  such  alarm  in  the  charge  of  the  jury,  and  by 
the  authorities  last  above  cited.     The  proper  way  of  showing 
this  alarm  was  by  the  declarations  made  at  the  time  by  the 
person  who  was  the  subject  of  it.     This  comes  within  the  prin- 
ciple laid  down  in  Willis  v.  Bernard,  8  Bing.  376,  and  s.  c.  21 
Eng.  Com.  L.  Rep.  325,  and  Averson  v.  Lord  Kinnaird,  6  East 
188;  See  also  House  v.  Allen,  3  Esp.  JV.  P.  C.  276,  cited  2  Stcp/i. 
JV.  P.  1562;    1  Phil.  Ev.  (6th  Am.  Ed.)  p.  189;  Barthdtmy 
v.  The  People,  2  Hill  257,  note  b,  at  all  events  it  was  compe- 
tent to  show  such  alarm  by  proof  that  the   deceased  was   in 
tears,  as  offered. 

III.  The  court  erred  in  admitting  the  question,  "  were  you 
imprisoned   in  the  county  jail    in  1827?"  asked   the  witness 
Catherine  Johnson  on  her  cross  examination   by  the  district 
attorney.     (1  Green.  Ev.  585,  §457,  note,  and  cases  cited;  The 
People  v.  Herrick,  13  J.  R.  84.) 


550 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


IV.  The  court   erred   in   admitting  the  question,  "  was  she 
ever  in  the  county  jail?"  asked  W.  Van  Vlack  by  the  district 
attorney.     See  authorities  last  cited. 

V.  The  court  erred  in  receiving  in  evidence  the  record  of 
conviction  and  imprisonment  of  Catherine  Johnson  in  the  year 
1827,  and  in  refusing  to  charge  the  jury  as  requested  relative 
to  the  effect  of  said  record.     ( 1  Green.  Ev.  587,  §  459;  Id.  585, 
note  3;  1  Burr's  Trial,  pp.  96,  98  to  100.) 

VI.  The  court  erred  in  admitting  the  opinion  of  Dr.  John 
Cooper,  Jr.,  as  to  prisoner's  sanity  at  the  time  of  the  alleged 
murder,  he  not  having  heard  all  the  testimony.     (The  People 
v.  Thurston  (Sup.  Court,  Gen.   Term,  6th  Jud.  Dist.)  manu- 
script, and  cases  therein  cited;  Ray's  Med.  Jur.  339.) 

VII.  The  court  erred   in  admitting  the  opinion  of  Dr.  John 
Cooper,  Jr.,  as  to  prisoner's  sanity  at  the  time  of  the  alleged 
murder,  formed  in  part  from  what  he  had  read  of  the  evidence 
in  a  newspaper.     See  cases  last  cited. 

VIII.  The  court  erred  in  receiving  the  opinion  of  Dr.  Samuel 
Dodge  as  to  prisoner's  sanity  at  the  time  of  the  homicide. 

IX.  The  court  erred  in  asking  Dr.  John  Thorn  the  question 
"  Do  you  think  the  conduct  of  Lake  as  described  by  the  wit- 
nesses, an  evidence  of  insanity?"  he  having  heard  only  part  of 
the  testimony  as  to  Lake's  conduct,  and  that  the  least  important 
part. 

X.  The  court  erred  in  admitting  the  opinion  of  Dr.  Per  Lee 
Pine,  as  to  prisoner's  sanity  at  the  time  of  the  alleged  murder, 
he  having  heard  but  part  of  the  testimony. 

XL  The  court  erred  in  admitting  the  opinion  of  Dr.  John 
Cooper  as  to  prisoner's  sanity  at  the  time  of  the  alleged  murder, 
he  having  heard  but  part  of  the  testimony. 

XII.  The  court  erred   in  asking  Dr.  John  Cooper,  Jr.,  the 
question,  "  Have  you  heard  enough  of  the  evidence  to  form  an 
opinion?"  and  in  admitting  the  answer  thereto. 

XIII.  The  court  erred  in  excluding  the  questions  proposed  1o 
be   asked   Dr.   John  Cooper,   Jr.,   on   his  cross-examination. 
(Freeman's  Trial,  Cayuga  Oy.  &  Ter.  p.  302,  303,  316,  317, 
364,  365;  Thurston' s  Trial,  Tioga  Oy.  #  Ter.  p.  43  j  T/iePeo- 


ORAXGE,  JULY,   18-34.  -501 

Lake  v.  The  People. 

pie  v.  Thurston  (Sup.  Court,  Gen.  Term,')  ^manuscript ;  Com- 
monwealth \.  Rogers,  7  Met.  500;  McNaughttn's  case,  10  Cl 
and  Fin.  210,  cited  in  2  Green.  Ev.  372,  note;  Wright's  case, 
Rust,  and  Ry.  Cr.  C.  456,  cited  Phil.  Ev.  4th  Am.  Ed.  p.  290.) 
These  questions  were  clearly  admissible  on  the  cross-examina- 
tion of  a  medical  witness  for  the  purpose  of  testing  the  sound- 
ness of  his  opinion.  The  15th  question  should  not  have  been 
excluded,  as  it.  was  not  hypothetical  in  form,  and  the  facts  on 
which  it  was  based  were  proved  by  Levi  Vincent,  and  Alfred 
Van  Vlack. 

XIV.  The  court  erred  in  excluding  the  question  proposed  by 
deft's  counsel  to  Dr.  Samuel  Dodge  on  his  cross-examination. 
See  authorities  last  cited.     The  question  was  not  hypothetical 
in  its  form,  and  the  fact  therein  recited,  was  proved  by  Dr. 
Andrus,  Dr.  Thompson,  Henry  Rikert,  R.  G.  Mooney,  J.  C. 
Ferguson  and  Wm.  Wilkinson. 

XV.  The  court  erred  in  excluding  the  questions  proposed  to 
be  asked  Dr.  R.  A.  Varick  by  defendant's  counsel.     See  au- 
thorities last  cited.     The  questions  were  neither  of  them  hypo- 
thetical, the  facts  upon  which  the  first  was  based,  were  proved 
by  Levi  Vincent,  and  by  Cyrus  Perkins.     Those  recited  in  the 
second,  by  Henry  Robinson,  Levi  Vincent,  and  all  other  wit- 
nesses of  the  transaction. 

XVI.  The  question  proposed  by  the  district  attorney  on  the 
cross-examination  of  Dr.  Varick,    objected    to   by   prisoner's 
counsel,  and  admitted  by  the  court,  and   that  proposed  by  pri- 
soner's counsel  on  the  cross-examination  of  Dr.  Thorn,  objected 
to  by  the  district   attorney,  and  excluded   by  the  court,  were 
substantially  the  same.     The  court,  erred,  therefore,  either  in 
admitting  the  former,  or  in  excluding  the  latter. 

XVII.  The  court  erred  in  charging  the  jury  that  the  nature 
of  the  act  was  no  evidence  of  insanity.      1.  As  a  question  of 
fact  it  should  have  been  left  to  the  jury  without  any  direction 
of  the  court.     2.  Whether  a  question  of  fact  or  law,  the  ruling 
of  the  court  upon  it  was  erroneous.     (Shaw  C.  J.  in  Comm.  v. 
Rogers,  7  Met.  503;  1  Beck's  Med.  Jnr.  789;  Dean's  Med 
Jur.  510,  (Jrt.2,)  516,  (Jrt.  4.);  Rny's  Med.  Jur.  230,  231, 


552  DECISIONS  IN  CRIMINAL  CASES. 

Lake  v.  The  People. 

§§217,  219;  Dr.  Bngham,  of  the  State  Lunatic  Asylum,  Fret 
man^s  Trial,  p.  100;  Dr.  Varick's  testimony,  error  book,  fol's 
68,  70;  Dr.  Allen's  testimony,  error  book,  fol.  169;  Dr. 
Cooper,  Jr's  testimony,  error  book,  fol.  124;  Dr.  Benedict,  of 
the  State  Lunatic  Asylum,  Thurston's  Trial,  p.  34;  Dr.  Butler, 
of  the  Hartford  Lunatic  Asylum,  Thurston's  Trial,  p.  36;  Dr 
JVichols,  of  the  Bloomingdale  Asylum,  Thurston's  Trial,  p.  39. ) 

XVIII.  The  court  erred  in  assuming,  in  the  charge,  that  the 
deceased  wife  was  unaffected  by  the  prisoner's  conduct  in  her 
presence,  and  in   instructing  the  jury  that  it  was  for  them  to 
determine  the  cause  of  such  indifference,  the  only  evidence  by 
which  they  could  satisfactorily  decide,  either  upon   her  actual 
state   of  mind  or  the  causes  which  produced  it  having  been 
excluded. 

XIX.  The  court  erred  in  undertaking  to  instruct  the  jury,  as 
to  what  would   or  would  not  have  been  the    conduct    of  an 
insane  man  —  or  as  to  the  motives  or  reasons  that  would  influ- 
ence such   a  man's  conduct.     (Dean's  Med.  Jur.  516,  Art.  5 
and  6;  Ray's  Med.  Jur.  230,  Art.  4  and  5,  687;  Dr.  Brigham, 
Superintendent  State  Lunatic  Asylum,  Freeman's  Tr.  pp.  100, 
101.) 

XX.  The  court  erred  in  refusing  to  charge  as  requested,  in 
relation  to   the   evidence   impeaching  the  character  of  Mrs. 
Johnson.     (Gilbert  v.  Sheldon,  13  Barb.  S.  C.  R.  623.) 

XXI.  The  court  erred  in  refusing  to  charge  as  requested,  it 
relation  to  the  evidence  of  prisoner's  insanity. 

T.  C.  Campbell,  (Dist.  Att'y,)  for  defendant  in  error. 

I.  The  charge  of  the  court  was  correct  on  all  the  points 
wherein  error  is  claimed  by  plaintiff  in  error.  1.  In  relation  to 
the  evidence  of  previous  insanity.  The  propositions  5,  6,  7, 
then  submitted  to  be  charged  are  mere  questions  for  argument 
to  the  jury.  It  can  not  be  claimed  they  are  questions  of  law, 
concerning  which  the  presiding  judge  is  by  law  bound  to  give 
instructions  to  the  jury.  2.  As  to  the  evidence  of  impeach- 
ment of  Mrs.  Johnson.  (1.)  The  case  of  Gilbert  vs.  Sheldon, 


ORANGE,  JULY,  1854.  553 

Lake  v.  The  People. 

(13  Barb.  623,)  on  which  this  exception  is  founded,  is  in 
opposition  to  the  plainest  rules  of  evidence,  and  should  be  dis- 
regarded. (Cowen  fy  Hill's  Notes,  768,  769,  and  780;  Hume 
v.  Scott,  3  Marsh.  260;  State  v.  Boswell,  2  Dev.  209;  The  Peo- 
ple v.  Herrick,  13  John.  84;  Bakeman  v.  Row,  18  Wen.  151; 
Fulton  Bank  v.  Benedict,  1  jp/a//,  558;  1  Greenleafs  Evidence, 
sec.  461.)  (2.)  The  evidence  was  proper  in  itself,  according  to 
the  decision  in  13  Barb,  as  far  as  it  went;  and  the  only  thing 
plaintiff  in  error  could  do,  was  to  move  to  strike  out  the  evi- 
dence, when  it  was  not  followed  by  proof  whether  the  witness 
sought  to  be  impeached  would  be  believed  on  oath  by  the  im- 
peaching witness.  The  court  did  not  go  as  far,  in  speaking 
of  these  subjects,  as  it  had  a  right  legally  to  go.  (Durkes  v. 
Marshall,  7  Wend.  314;  Gardner  v.  Picket,  19  Wend.  187; 
People  v.  Haynes,  14  Wend.  581;  same  case,  11  id.  557.)  The 
English  rule  is  the  same.  (Bar.  Sf  Cres.  430.) 

II.  The  ruling  of  the  court  was  correct  as  to  the  reception 
and  rejection  of  testimony.  1.  As  to  the  questions  proposed  to 
be  put  to  Dr.  John  Cooper  and  others:  (1.)  They  are  merely 
hypothetical  questions,  put  to  gratify  the  curiosity  of  counsel. 
(2.)  The  questions  are  all  of  them  double,  and  therefore  ob- 
jectionable in  form.  (3.)  They  are  not  questions  on  which  a 
scientific  man  could  with  propriety  give  his  opinion.  (4.)  The 
matter  set  forth  in  these  questions  would  be  very  proper  ques- 
tions for  argument  to  the  jury,  but  can  not  be  introduced  as 
evidence  by  way  of  scientific  opinions.  The  counsel  for  the 
defendant  might  with  just  as  much  propriety  have  asked  if  the 
witness  believed  the  jury  would  find  the  prisoner  guilty,  and 
whether  they  ought  to  find  him  guilty.  No  inquiry  as  to  par- 
ticular facts  is  proper;  if  anything  of  the  kind  proposed  is 
proper,  it  can  only  be  the  general  question,  "  what  was  the 
state  of  the  prisoner's  mind,  from  the  evidence,  at  the  time  of 
the  commission  of  the  act]"  (McNaughton's  case,  10  Clark 
S>~  Fin.  210;  1  Greenleaf's  Ev.  sec.  460;  Rex  v.  Wright,  Ruts 
fy  R.  456.)  2.  The  question  to  Dr.  John  Cooper,  Jr.  "  Have 
you  heard  enough  of  the  evidence  to  form  an  opinion?"  was 

VOL  I  70 


DECISIONS  IN  CRIMINAL  CASES. 
Lake  v.  The  People. 

properly  allowed.  (1.)  It  was  only  carrying  out  the  previous 
announcement  of  the  court,  which  had  been  assented  to  by  the 
respective  counsel  and  acted  upon  by  them.  It  had  been  as- 
sented to  by  the  counsel  respectively,  tacitly,  at  the  very  com- 
mencement of  calling  the  scientific  witnesses.  It  had  been  acted 
apon  in  the  following  cases,  on  the  part  of  the  defence:  Case 
of  Dr.  Varick,  case  of  Dr.  Andrus.  (2.)  It  was  proper  in  itself, 
'hough  not  assented  to.  3.  The  only  true  rule  is  to  allow  a 
scientific  witness  to  give  his  opinion  when  he  has  heard  enough 
evidence  to  enable  him  to  form  an  opinion;  and  the  doctrine 
that  he  must  hear  all  the  evidence,  can  not  be  sustained  by 
ieo-al  authorky  nor  common  sense.  (1.)  Opinion  is  the  mere 
act  of  the  mind,  and  when  the  mind  is  satisfied,  all  has  been 
done  that  can  be,  and  additional  facts  proved  to  affect  the 
opinion  would  be  merely  cumulative  evidence.  (2  )  It  is  utterly 
impossible  to  have  a  witness  hear  all  the  evidence,  particularly 
when  the  witness  is  a  practicing  physician.  4.  The  question 
put  to  Mrs.  Johnson,  as  to  her  being  in  the'  county  jail  was 
proper.  The  only  objection  which  could  be  raised  to  it  could 
proceed  only  from  her;  and  on  her  declining  to  answer,  the 
;ourt  did  not  compel  her.  5.  The  evidence  offered,  of  the  de- 
^laration  of  the  murdered  woman,  of  what  took  place  the  day 
before  the  act,  can  not  be  received.  (1.)  They  are  not  offered 
or  claimed  to  be  dying  declarations.  (2.)  They  are  not  evi- 
dence, legally,  not  being  part  of  the  res  gesta,  or  connected  with 
the  act,  (2  Russell  on  Crimes,  751.)  (3.)  The  acts  of  Han- 
nah, showing  she  was  alarmed,  might  have  been  proper,  but 
her  declarations  would  have  been  mere  hearsay. 

III.  These  positions  are  fortified  and  sustained  by  the  deci- 
sions of  the  courts  of  this  and  other  countries.  1.  By  the  rule 
in  this  state,  in  cases  of  insanity,  which  is  as  follows:  "  in 
the  defence  of  insanity  to  an  indictment  for  murder,  it  must  be 
proved  the  person  charged  is  laboring  under  such  mental  dis- 
ease as  not  tt>  know  the  difference  between  right  and  wrong." 
(The  People  v.  Freeman,  4  Denio,  28.)  U  The  rule  is  the 
same  at  common  law,  and  in  England  at  this  time. 


ORANGE,  JULY,  J854.  5/55 

Lake  v.  The  People. 


By  the  Court,  DEAN,  J. — The  prisoner,  on  the  seventh  of 
June,  1853,  at  LaGrange,  in  Dutchess  county,  in  the  day  time, 
killed  his  wife,  or  the  woman  with  whom  he  cohabited,  and 
their  two  infant  children,  these  constituting  his  whole  family. 
He  then,  with  a  sword  and  motions  and  language,  standing  at 
an  upper  window  in  his  house,  almost  entirely  naked,  kept  the 
people  who  had  gathered  around  for  the  purpose  of  arresting 
him,  from  accomplishing  their  object,  until  he  was  shot.  He 
was  soon  after  the  occurrence  indicted  for  murder,  and  at  the 
Dutchess  Oyer  and  Terminer,  in  September  last,  tried  and  con- 
victed. The  defence,  as  usual,  in  cases  of  open,  aggravated 
crime,  was  insanity.  Whether  the  prisoner  was  or  was  not  of 
sound  mind  at  the  time  of  the  commission  of  the  act,  is  a  Ques- 
tion with  which  this  court  has  now  no  concern.  The  jury 
passed  upon  it,  and  had  there  been  no  questions  of  lav/  arising 
upon  the  admission  or  rejection  of  evidence  on  the  trial,  it  is 
very  clear  that  their  verdict  could  not,  and  should  not,  be  dis- 
turbed by  us.  But  the  prisoner's  counsel  on  the  trial  offered 
evidence  which  was  excluded,  and  the  district  attorney  was 
allowed  to  give  evidence  after  objection  on  the  part  of  the  de- 
fence. To  these  various  decisions  of  the  court,  exceptions  were 
taken,  and  we  are  now  away  from  the  hurry  and  excitement  of 
the  trial,  to  pass  upon  these  exceptions.  If  any  one  of  them 
taken  to  material  testimony  is  valid,  it  is  our  duty  to  grant  a 
new  trial,  no  matter  what  may  have  been  the  prisoner's  crime, 
or  what  opinion  we  may  entertain  of  his  guilt.  The  safety  of 
any  system  of  jurisprudence  depends  upon  the  uniformity  of  its 
administration.  By  the  one  which  it  is  our  duty  to  administer, 
the  vilest  criminal  is  entitled  alike  with  the  purest  citizen  to 
the  benefit  of  all  the  forms  of  proceeding,  which  the  wisdom  of 
our  predecessors  has  established  as  safeguards  for  the  protection 
of  property,  liberty  and  life.  Without,  therefore,  in  any  way 
expressing  an  opinion  upon  the  correctness  of  the  verdict  of  the 
jury,  I  proceed  to  the  examination  of  the  questibns  which  have 
been  raised  before  us  on  the  argument  of  this  case. 

There  are  very  many  of  the  exceptions  which  can  not  be 
sustained  There  are,  however,  some  of  them  which  the  court 


556 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  v.  The  People. 


are  unanimously  of  opinion  are  well  taker.,  and  on  which  I 
shall  now  give  the  conclusion  to  which  on  examination  I  hav 
arrived j  I  shall  also  speak  of  two  of  the  exceptions  which  I 
think  can  not  be  sustained. 

Where  the  question  to  be  determined  by  a  jury  is  the  sanity 
of  a  person,  both  the  acts  and  declarations  of  the  person  are  evi- 
dence, for  the  purpose  of  ascertaining  the  state  of  mind  of  the 
actor.  On  the  trial  of  this  indictment,  this  rule  was  observed, 
and  full  latitude  was  given  to  the  acts,  conduct  and  declarations 
of  the  prisoner,  both  before  and  after  the  homicide.  His  coun- 
sel, however,  proposed  to  go  further,  and  prove  the  effect  which 
the  prisoner's  conduct  had  on  the  mind  of  another  person  the 
day  before  the  killing,  not  only  by  the  acts,  but  by  the  declara- 
tions of  the  person  killed,  made  to  third  persons,  and  in  the 
absence  of  the  prisoner.  I  can  find  no  authority  which  would 
justify  this  species  of  evidence,  and  there  is  no  reason  which 
can  sustain  it.  The  fact  to  be  proved  is  the  state  of  the  pri- 
soner's mind.  While  his  declarations  at  the  time  and  before 
and  after  the  occurrence,  are  evidence,  not  of  the  res-gestce,  but 
of  ihefact  to  be  proved — the  mental  state  of  the  prisoner — it  is 
very  clear  that  the  declarations  of  third  persons  can  not  shed  a 
ray  of  light  on  the  subject  of  inquiry,  but  will,  at  best,  furnish 
the  jury  with  only  the  opinion  of  the  declarant.  Had  the  per- 
son whose  declarations  are  sought  thus  to  be  given,  survived, 
her  opinion  under  oath  would  not  have  been  testimony.  Upon 
what  principle,  then,  can  her  statements  be  given  in  evidence, 
without  the  means,  by  a  cross-examination,  or  in  any  other 
way,  of  testing  their  accuracy,  or  ascertaining  the  sincerity 
with  which  they  were  uttered?  These  declarations  constitute 
no  part  of  the  res-gestce.  They  are  of  a  day  prior  to  the  trans- 
action, and  are  claimed  to  be  evidence,  not  of  the  fact  to  be 
proved — the  state  of  the  prisoner's  mind — but  of  the  feelings 
and  emotions  of  the  deceased;  a  matter  which  is  wholly  imma- 
terial to  the  issue  on  trial.  Suppose  what  is  sought  to  be  pro- 
ven by  this  evidence  is  admitted,  that  deceased  said  she  was 
alarmed  and  feared  the  prisoner  would  hurt  himself,  does  that 
advance  the  jury  a  single  step  in  their  inquiry?  Do  not  sane 


ORANGE,  JULY,  1854.  557 

Lake  v  The  People. 

men  frighten  women?  Or  are  all  men  who  alarm  their  wives 
exempt  from  criminal  liability?  The  mere  statement  of  the 
conclusion  to  which  this  species  of  evidence  would  bring  us,  is 
a  sufficient  argument  to  show  its  inadmissibility. 

Another  ground  of  error,  which  is  confidently  relied  on  by 
the  prisoner's  counsel,  is  the  admission  of  a  record  of  conviction 
for  petit  larceny  more  than  twenty-five  years  old,  against  one 
of  the  witnesses  on  the  trial.  While  I  am  not  aware  of  any 
statute  of  limitations  which  would  exclude  this,  I  atn  very 
certain  that  such  testimony,  not  followed  by  proof  of  subsequent 
bad  character,  ought  to  be  wholly  disregarded  by  a  jury.  To 
give  it  weight  and  say  that  a  person  who  had  once  been  guilty 
of  an  offence  which  in  itself  does  not  render  a  witness  incom- 
petent, is  for  life  to  be  discredited,  would  be  to  declare  that 
repentance  and  reformation  were  impossible,  and  at  the  same 
time  take  away  one  of  the  strongest  motives  for  reform.  I  can 
not  believe  that  any  jury  could  have  been  influenced  by  this 
testimony,  to  discredit  the  witness  against  whom  it  was  pro- 
duced. 

I  think  there  was  error  in  the  rule  adopted  for  the  examina- 
tion of  medical  witnesses.  Several  of  those  who  had  heard  only 
a  portion  of  the  testimony  on  which  the  prisoner's  counsel  relied 
to  establish  his  defence  were  allowed  to  give  their  opinions 
founded  upon  the  part  of  the  testimony  they  had  heard  as  to  his 
sanity,  Although  the  opinions  of  experts  are  admissible  evi- 
dence, yet  it  must  be  on  a  given  state  of  facts  j  and  the  facts  on 
which  the  opinion  is  based  must  be  admitted,  and  must  be  all 
the  facts  relied  upon  to  establish  the  theory  which  it  is  sup- 
posed these  facts  sustain.  Every  witness  would  otherwise  come 
to  a  different  conclusion,  and  the  same  witness  testifying  on  one 
half  the  facts  might  give  as  his  opinion  that  they  indicated 
sanity,  while  the  other  half  would  satisfy  him  of  the  prisoner's 
madness.  A  question  in  physical  science  will  afford  an  illus- 
tration. A  motion  which  is  the  result  of  a  combination  of 
different  forces,  invariably  changes  its  direction  if  but  one  of 
the  moving  powers  is  withdrawn.  Take  away  half  of  them,  it 
•would  be  reversed  in  its  course.  Experts  might  be  called  to 


558 


DECISIONS  IN  CRIMINAL  CASES. 


Lake  e.  The  People. 


prove  any  given  motion;  they  might  also  be  asked  what  would 
be  the  effect  of  certain  combined  forces,  but  in  either  case  it  is 
manifest  that  to  have  the  opinion  correct,  all  of  the  motive 
powers  must  be  given.  Medical  men  are  allowed  to  give  their 
opinions  in  cases  of  alleged  insanity,  because  they  are  supposed 
by  their  study  and  practice  to  understand  the  symptoms  of  in- 
sanity and  possess  peculiar  knowledge  on  this  subject,  while  the 
jury  whose  opinion  is  ultimately  to  govern  in  the  decision  of 
the  question,  are  believed  to  be  incapable,  without  the  aid  of 
the  experience  and  skill  of  these  men,  to  judge  correctly  of 
mental  phenomena.  It  is  for  this  reason,  and  for  this  reason 
solely,  that  such  testimony  is  admitted.  It  is  evident,  there- 
fore, that  if  medical  witnesses  are  to  tell  the  jury  what  is  the 
state  of  the  prisoner's  mind,  they  must  do  it  on  all  the  testimony 
which  is  relied  on  to  establish  insanity.  And  to  allow  it  on  a 
part,  would  be  as  dangerous  in  principle  as  to  permit  a  juror  to 
sit  during  a  part  of  the  trial  and  then  unite  with  the  rest  in 
determining  the  verdict.  The  conclusion  to  which  the  members 
of  the  court  have  come  on  this  point  is  sustained  by  reason  and 
the  authority  of  every  reported  case,  so  far  as  they  have  come 
under  my  examination  or  notice. 

There  is  another  question  of  much  interest  which  arose  on  the 
trial  of  this  case,  on  which  I  think  an  opinion  should  be  given 
now.  It  is  this:  On  a  trial  where  the  question  of  insanity  arises, 
can  a  medical  witness,  who  is  examined  as  an  expert,  be  asked  his 
opinion  upon  a  hypothetical  statement  of  facts?  I  know  that 
such  has  been  the  practice  on  trials  of  this  kind,  and  am  sur- 
prised to  find  no  authority  on  the  subject  in  the  reports  of  this 
state.  By  a  reference  to  the  trial  of  Freeman,  it  will  be  seen 
that  this  mode  of  examination  was  adopted  without  objection. 
On  the  trial  of  this  case  the  prisoner's  counsel  propounded  to  a 
medical  witness,  on  the  cross-examination,  seventeen  questions, 
all  of  which  were  excluded;  some  of  them  were  perhaps  objec- 
tionable in  form,  but  they  sufficiently  raise  the  question  for  us 
now  to  settle  the  principle  which  should  govern,  in  the  admis- 
sion or  rejection  of  evidence  of  this  nature.  I  think  it  is  proper 
to  allow  the  witness  to  be  asked  whether  a  certain  state  of  facts 


GRANGE,  JULY,  1S54. 


Lake  v.  The  People. 


if  proved  or  admitted,  indicate  insanity;  and  that  for  the  pur- 
pose of  testing  the  skill  of  the  witness  or  the  soundness  of  his 
knowledge. 

On  the  cross-examination,  the  counsel  may  be  allowed  to 
ask  even  whether  facts  not  in  proof  do  or  do  not  indicate 
insanity.  The  medical  witness  will  thus  not  be  allowed  to  pass 
upon  the  truth  of  the  facts,  nor  make  up  the  opinion  of  the  jury, 
but  give  his  own  opinion  upon  a  given  state  of  facts  and  leave 
the  jury  to  determine  their  truth,  weigh  his  opinion  and  make 
their  own  verdict  upon  the  whole.  This  is  equivalent  to  allow- 
ing the  professional  witness  to  testify  what  are  the  symptoms 
of  insanity,  leaving  to  the  jury,  as  should  be  done  after  learning 
what  are  the  symptoms,  to  determine  the  whole  question  whe- 
ther those  symptoms  exist,  and  if  so,  whether  they  are  feigned 
or  real,  and  also  their  extent. 

I  think,  therefore,  that  the  exceptions  above  indicated  are 
well  taken,  and  that  a  new  trial  should  be  granted. 

Judgment  reversed,  and  new  trial  granted 


560  DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     Orange  General  Term,  July  1854.     Browr^ 
S.  B.  Strong  and  Rockwell,  Justices. 

THE  PEOPLE  vs.  JOHN  HENDERSON. 

Arson  is  an  offence  against  the  property  of  another;  and  a  person  can  not  be- 
come guilty  of  arson  in  the  first  degree,  by  setting  fire  to  his  own  house. 

To  convict  a  person  of  arson  in  the  third  degree,  under  $  5,  2  R.  S.  667,  it  is 
necessary  to  allege  that  the  house  was  insured  against  loss  or  damage  by  fire 
and  that  the  offence  was  committed  with  intent  to  defraud  the  insurance 
company:  under  that  section  a  person  may  be  convicted  of  burning  his  own 
dwelling  house,  but  it  is  still  an  offence  against  the  property  of  another,  the 
object  of  the  crime  being  to  defraud  the  insurer,  who  has  an  interest  in  the 
preservation  of  the  property. 

Where  an  indictment  for  arson  charged  that  the  prisoner,  in  the  night  time, 
feloniously  set  fire  to  his  own  dwelling  house,  in  which  there  were  at  the 
time  divers  human  beings,  with  intent  to  burn  the  said  dwelling  house  and 
with  intent,  thereby,  to  defraud  the  Poughkeepsie  Mutual  Insurance  Com- 
pany, on  demurrer,  it  was  held  that  the  indictment  was  not  sufficient  to  bring 
the  offence  within  the  first  degree,  because  it  was  not  the  dwelling  house  of 
another,  and  that  it  was  not  sufficient  under  the  third  degree,  because  it  was 
not  alleged  in  the  indictment  that  the  property  was  insured,  and  the  indict- 
ment was  adjudged  to  be  bad. 

Error  from  the  Orange  County  Oyer  and   Terminer. 

T.  McKtssock,  for  defendant. 

C.  H.  Winfield,  (Dist.  Att'y,)  for  the  people. 

By  the  Court,  ROCKWELL,  J.  —  The  prisoner  was  indicted 
before  the  Court  of  Oyer  and  Terminer  of  Orange  County  for 
arson.  The  indictment  charged  in  substance,  that  the  prisoner, 
in  the  night  time,  feloniously  set  fire  to  his  own  dwelling 
house,  in  which  there  were  at  the  time  divers  human  beings, 
with  intent  to  burn  the  said  dwelling  house,  and  with  intent 
thereby  to  defraud  the  Poughkeepsie  Mutual  Insurance  Cam- 
pany.  A  general  demurrer  was  put  in,  which  was  overruled 
by  the  Court  of  Oyer  and  Terminer,  and  the  prisoner  there- 
upon by  leave  of  the  court  pleaded  hot  guilty  and  was  tried,  and 


ORANGE,  JULY,  1854.  55 ^ 

The  People.  t>.  Henderson. 

a  general  verdict  of  guilty  rendered.  A  writ  of  error  has  been 
sued  out  in  behalf  of  the  prisoner,  and  the  question  presented 
under  it  is,  Did  the  Court  of  Oyer  and  Terrainer  err  in  overrul- 
ing the  demurrer? 

It  is  contended  on  the  part  of  the  people  that  the  indictment 
charges  the  crime  of  arson  in  the  first  degree.  This  is  disputed 
on  the  part  of  the  prisoner,  upon  the  ground  that  a  person  can 
not  become  guilty  of  the  crime  in  that  degree  by  setting  fire  to 
his  own  house.  The  offence  of  arson,  which  is  a  felony  at  the 
common  law,  is  defined  by  Lord  Coke  to  be  the  voluntary  and 
malicious  burning  of  the  house  of  another  by  day  or  night.  (3 
Inst.  66;  1  Hale,  P.  C.  566.) 

The  burning  of  a  man's  own  house  is  no  felony  at  common 
law.  But  if  a  man  set  fire  to  his  own  house  maliciously, 
intending  thereby  to  burn  the  adjoining  house,  if  the  latter  is 
burned  it  is  felony;  if  not,  it  is  a  great  misdemeanor.  (1  Hale 
P.  C.  568;  2  East,  P  C.  1027). 

Arson,  as  well  by  the  statutes  of  this  state,  as  by  the  common 
law,  is  an  offence  against  property.  It  consists  in  destroying 
the  property  of  another,  through  the  agency  of  fire. 

In  the  first  degree  it  is  defined  by  statute  as  follows:  "Arson 
in  the  first  degree  consists  in  willfully  setting  fire  to,  or  burn- 
ing, in  the  night  time,  a  dwelling  house,  in  which  there  shall 
be  at  ihf  time  some  human  being,  and  every  house,  prison, 
jail  or  other  edifice,  which  shall  have  been  usually  occupied 
by  persons  lodging  therein  at  night,  shall  be  deemed  a  dAvell- 
ing  house  of  any  person  lodging  therein.  (2  R.  S.  657,  §  9.) 
In  this  degree  it  is  punishable  with  death,  and  is  the  only 
offence  against  property  which  in  this  state  is  so  punishable. 
The  peculiar  characteristics  of  this  degree  of  arson,  which 
render  it  more  atrocious  than  any  other  offence  against  property, 
are: 

1.  It  is  directed  against  a  species  of  property  which  is 
more  indispensable  to  the  owner  than  any  other,  namely,  his 
dwelling  house.  The  design  and  tendency  of  the  crime  is,  to 
deprive  him  of  the  shelter  of  his  roof,  and  the  security  and 
comlort  of  his  home.  For  this  reason,  it  is  held  to  be  au 

VOL.  I.  71 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v.  Henderson. 


offence  against  the  possession,  and  therefore  the  house  or 
building,  which  is  the  subject  of  the  crime,  must  be  described 
in  the  indictment  as  the  house  or  building  of  the  person  in  pos- 
session, or  in  other  words  of  him  whose  dwelling  or  home  it  is. 
(The  People  v.  Van  Blarcum,  2  Johns.  R.  105.) 

2.  It  is  committed  in  the  night  time  and  while  there  is  in 
the  house  some  human  being.  The  natural  and  usual  conse- 
quences of  the  crime  are.  that  the  lives  of  the  inmates  of  the 
house  are  imperiled,  and  they  are  driven  out  in  the  darkness 
of  night,  from  the  shelter  and  all  the  comforts  of  their  home. 
The  offence  is  marked  with  the  most  deliberate  and  atrocious 
malice.  It  is  not  perpetrated  in  the  heat  of  passion,  but  coolly 
and  stealthily,  usually  without  any  view  of  pecuniary  gain. 
and  the  consequences  are  such  as  no  mind  which  is  not  utterly 
hardened  and  d.epraved,  can  even  contemplate  with  compla- 
cency. But  still  it  is  an  offence  against  property.  The  word 
"  arson  "  signifies  the  burning  of  property.  If  it  is  an  offence 
against  property,  how  can  it  be  committed  against  a  man's 
own  property?  The  right  of  property,  which  is  one  of  those 
fundamental  rights  which  laws  are  instituted  to  protect, 
imports  an  absolute  dominion  of  the  owner  over  his  property 
He  may  use  it  as  he  pleases,  or  destroy  it  if  he  sees  fit,  if  he 
does  not  thereby  injure  another. 

Although  it  is  not  expressly  stated,  in  the  statutory  definition 
of  arson  in  the  first  degree,  that  it  consists  in  burning  the 
dwelling  house  of  another,  yet  it  is  to  be  remembered  that  the 
offence  defined  is  arson,  which  is  a  term  having  a  known  am' 
certain  meaning  in  law,  as  well  as  in  common  parlance.  If 
we  call  in  the  common  law  in  aid  of  the  statute,  as  I  think  we 
should  do,  we  find  that  the  word  arson  means,  the  burning  of 
the  house  of  another.  Unless  the  statutory  definition  therefore 
expressly  extends  the  offence  to  a  man's  own  property,  the  use 
of  the  term  itself  restricts  it  to  the  property  of  others.  (The 
People  v.  Yates,  15  Wend.  159.) 

By  the  express  terms  of  the  statute  a  person  may  commit 
arson  in  the  third  degree  by  burning  his  own  house,  in  case  th< 
house  is  insured  against  damage  by  fire,  and  the  offence  ii 


ORANGE,  JULY,  1854. 


The  People  v.  Henderson. 


committed  with  intent  to  prejudice  the  insurer.  (2  R.  S.  667, 
§5.) 

The  indictment,  in  the  present  case,  is  insufficient  to  charge 
the  prisoner  with  this  degree  of  arson,  because  although  it 
contains  the  allegation  that  the  offence  was  committed  with 
intent  to  defraud  the  Poughkeepsie  Mutual  Insurance  Company, 
it  does  not  contain  the  necessary  allegation  that  the  house  was 
insured.  (2  R.  S.  667,  §  5.) 

The  principle,  upon  which  the  last  mentioned  section  of  the 
statute  is  founded,  is  in  perfect  harmony  with  the  view  above 
suggested,  that  arson  is  an  offence  against  property,  and  can 
not  be  committed  where  a  man  only  burns  his  own  house  with- 
out thereby  injuring  or  endangering  the  house  or  property  of 
another.  For  where  the  house  is  insured  and  it  is  burned  by 
the  owner  with  intent  to  defraud  the  insurer,  the  design  and 
tendency  of  the  crime  is  to  invade  the  right  of  property  of  such 
insurer.  The  insurer  by  his  contract  of  insurance,  has  acquired 
an  interest  in  the  preservation  of  the  house  from  destruction  or 
damage  by  fire. 

Arson  in  the  first  degree  is  not  necessarily  a  crime  against  hu- 
man life,  or  the  personal  safety  of  others.  Although  the  endan- 
gering of  human  life  is  a  frequent  consequence  of  its  commission, 
it  is  not  one  of  its  necessary  characteristics.  The  offence  may 
be  complete,  without  the  life  of  any  human  being  having  been 
put  in  the  slightest  peril.  It  by  no  means  follows,  that  because 
some  person  is  in  the  dwelling  set  fire  to  at  the  time  of  the 
commission  of  the  offence,  that  the  life  or  safety  of  such  person 
is  endangered.  The  probable  danger  to  life  is  undoubtedly 
one  of  the  circumstances  which  aggravates  the  offence,  but  it 
does  not  constitute  it.  The  crime  itself  is  arson,  not  an 
attempt  to  commit  homicide,  nor  does  it  consist  in  doing  an 
act  likely  to  produce  the  death  of  another  unless  such  act  is  at 
the  same  time  arson,  which,  as  has  been  already  shown,  can 
only  consist  in  burning  the  house  of  another.  I  think  the 
Court  of  Oyer  and  Terminer  erred  in  overruling  the  demurrer. 

Judgment  of  the  Oyer  and  Terminer  reversed  and  judgment 
for  defendant  on  demurrer. 


564  DECISIONS  IN  CRIMINAL  CASES. 


SUPREME  COURT.     Delaware  General  Term,  July  1854.     Crip 
pen,  Shankland  and  Mason,  Justices. 

THE  PEOPLE  vs.  LEVI  JOHNSON. 

in  order  to  constitute  the  crime  of  receiving  stolen  goods,  knowing  them  to 
have  been  stolen,  the  stolen-  property  must  be  received  feloniously,  or  with 
intent  to  secrete  it  from  the  owner,  or  in  some  other  way  to  defraud  him  of 
the  property. 

In  an  indictment  for  such  ofTence,  it  is  not  sufficient  to  allege  that  the  defend, 
ant  received  the  stolen  property  knowing  it  to  be  stolen,  but  it  is  necessary 
to  aver  that  the  property  was  so  received  with  a  felonious  or  fraudulent  in- 
tent. 

if  there  be  no  such  averment  in  the  indictment  the  defendant  may  avail  himself 
of  the  defect,  by  demurrer,  writ  of  error,  or  motion  in  arrest  of  judgment. 

The  defendant  was  tried  and  convicted  at  the  Madison  county 
Oyer  and  Terminer  in  October,  1853,  and  sentenced  to  two. 
years  imprisonment  in  the  state  prison  on  an  indictment  for 
receiving  stolen  goods  and  property,  with  a  knowledge  at  the 
time  of  their  having  been  stolen. 

The  conviction  was  had  upon  the  first  count  of  the  indictment. 

D.  Brown,  for  prisoner. 

D.  L.  Mitchell,  for  the  People. 

Per  Curiam,  CRIPPEN,  P.  J.  The  act  entitled  "  Of  robbery, 
embezzlement  and  larceny,  (  2  R.  S.  680,  §  71)  provides  that 
every  person  who  shall  buy  or  receive  in  any  manner  upon  any 
consideration  any  personal  property  of  any  value  whatsoever 
that  shall  have  been  feloniously  taken  away  or  stolen  from  any 
other,  knowing  the  same  to  have  been  stolen,  shall  upon  con- 
viction be  punished  by  imprisonment,  &c. 

The  indictment  does  not  charge  that  the  defendant  received 
the  property  feloniously,  or  unlawfully,  or  with  intent  to  de- 
fraud the  owner,  but  simply  alleges  that  he  received  and  had 
said  goods  and  chattels  which  had  been  feloniously  stolen,  with 
a  knowledge  that  the  same  had  been  stolen  at  the  time  he  re- 
ceived said  property;  concluding  to  the  great  damage  of  the 
owner  thereof,  and  contrary  to  the  statute,  &c. 


DELAWARE,  JULY,   IS54. 


The  People  v.  Johnson. 


The  defendant's  counsel  on  the  trial  objected,  and  insisted 
that  the  first  count  of  the  indictment  was  defective  and  wholly 
insufficient  to  sustain  a  conviction,  on  the  ground  that  it  did 
not  contain  an  averment  that  the  defendant  received  said  stolen 
property  feloniously  or  wrongfully,  or  with  intent  to  defraud 
the  owner  thereof.  The  court  overruled  the  objection. 

It  is  undoubtedly  true  that  the  indictment  follows  and  adopts 
the  language  of  the  statute  in  charging  the  offence.  The 
statute  declares  that  every  person  who  shall  buy  or  receive  in 
any  manner  upon  any  consideration  any  property  feloniously 
taken  or  stolen  from  another,  with  a  knowledge  of  its  being 
stolen  property,  upon  conviction  thereof  shall  be  adjudged 
guilty,  &c. 

The  indictment  in  this  case  does  not  charge  the  defendant 
with  having  bought  the  stolen  property,  but  with  having  re- 
ceived it,  knowing  at  the  time  that  it  had  been  stolen.  The 
statute  is  entirely  silent  as  to  the  intent  of  the  person  who  may 
receive  and  have  stolen  goods  or  property,  with  a  knowledge 
at  the  time  of  receiving  the  same  that  such  property  had  been 
stolen.  The  letter  of  the  statute  giving  it  a  liberal  construction*, 
seems  to  cover  every  case  of  receiving  stolen  property  with  a' 
knowledge  of  its  having  been  stolen.  No  matter  as  to  the  purity 
of  the  motives  by  which  the  person  may  be  actuated  in  receiving 
the  property,  if  he  has  knowledge  at  the  time,  that  it  has  been 
stolen,  the  statute,  according  to  its  strict  letter,  makes  the  act 
criminal  and  subjects  the  person  to  criminal  punishment. 

If  a  person  knows  that  another's  goods  have  been  stolen,  he 
must  not  receive  them  into  his  possession  for  any  purpose,  not 
even  to  secure  the  same  for  the  true  owner;  if  he  does  so  the 
statute  according  to  its  letter  makes  it  a  crime  and  him  a 
criminal. 

No  argument  is  necessary  to  establish  the  injustice  and  ab- 
surdity of  giving  such  a  construction  to  the  statute. 

The  intent  of  the  statute  must  govern  in  giving  it  a  proper 
construction.  The  object  of  the  legislature  manifestly  was  to 
punish  persons  who  should  receive  stolen  property,  in  aid  of 
the  thief  who  had  committed  the  larceny,  or  who  should  in  any 


L  EC  IS  IONS  IN  CRIMINAL  CASES. 


The  People  v.  Johnson. 


manner  aid  in  defrauding  the  owner  of  his  property,  having  a 
knowledge  at  the  time  that  the  property  had  been  stolen. 

In  order  to  constitute  the  crime  created  by  the  statute,  the 
stolen  property  must  be  received  feloniously  or  with  intent  to 
secrete  it  from  the  owner,  or  in  some  other  way  to  defraud  him 
of  such  property.  The  intent  must  be  criminal  or  unlawful, 
otherwise  no  crime  can  be  committed;  it  is  the  intent  with 
which  the  property  is  received  that  constitutes  the  essence  of 
the  crime;  if  the  intent  is  honest  and  meritorious  no  crime  can 
be  committed. 

The  next  question  arising  in  the  case  is  whether  the  intent 
should  or  not  be  averred  in  the  indictment,  or  in  other  words, 
is  the  indictment  sufficient  to  warrant  a  conviction,  without 
charging  the  defendant  with  a  felonious  receiving  of  the  pro- 
perty, or  that  he  wrongfully  received  it,  or  that  it  was  received 
unlawfully,  or  to  defraud  the  owner  thereof.  We  deem  the 
rule  well  settled,  both  upon  authority  and  principle,  that  every 
fact  or  circumstance  which  is  a  necessary  ingredient  in  the- 
offence,  should  be  averred  in  the  indictment.  If  any  fact  which 
is  a  material  ingredient  to  constitute  the  crime  is  omitted  in 
the  indictment,  such  omission  vitiates  it,  and  the  defendant 
may  avail  himself  of  such  defect  by  demurrer,  by  writ  of  error, 
or  on  a  motion  in  arrest  of  judgment.  (JJrchbold's  Criminal 
PI.  42,  5th  edition;  Barbour's  Criminal  Law,  320;  Lee  v.  Clark, 
2  East,  333.)  Nor  will  the  conclusion  of  the  indictment  with 
the  words  "  contrary  to  the  form  of  the  statute,"  convict.  (2 
Hale,  170;  Archbold,  51;  Corny  n^s  Digest,  Information,  D.  3.) 
It  will  be  found  that  the  precedents  given  in  Chitty  &  Arch- 
bold's  Criminal  Pleadings,  of  indictments  for  receiving  stolen 
property,  aver  that  such  property  was  received  feloniously  01 
with  intent  to  defraud  the  owner.  We  have  not  found  a  case 
or  precedent,  where  the  indictment  has  omitted  to  charge  the 
defendant  with  having  feloniously  received  the  stolen  property 
with  a  knowledge  of  its  having  been  stolen.  The  result  is  that 
the  judgment  and  conviction  in  this  case  must  be  reversed  and 
the  defendant  discharged  from  imprisonment. 

Judgment  reversed. 


ORANGE,  JULY,   1854.  5gy 

DUTCHESS  CIRCUIT.     September   1854.     Before  Dean,  Justice. 

i 

THE  PEOPLE  vs.  FRANK  MACK. 

A  recognizance  taken  by  a  justice  of  the  peace,  for  the  appearance  of  the  ac- 
cused to  answer  to  a  criminal  charge,  must  require  his  attendance  at  the  next 
criminal  court  having  cognizance  of  the  offence. 

Where  a  recognizance  was  conditioned  for  the  appearance  of  the  accused  at  the 
next  court  of  Oyer  and  Terminer,  to  be  held  in  the  county  in  June  then  next, 
and  it  appeared  that  a  court  of  Sessions  was  appointed  to  be  held  and  was  in 
fact  held  in  the  same  county,  on  the  second  Monday  of  May  of  the  same 
year,  at  which  a  grand  jury  was  required  to  attend  and  did  attend  and  was 
sworn  and  heard  complaints,  such  court  of  Sessions  having  cognizance  of  the 
offence  charged,  the  recognizance  was  held  void  and  in  an  action  upon  it 
against  the  bail,  judgment  was  given  for  the  defendant. 

Where  a  justice  of  the  peace  was  authorized  to  hear  a  complaint  and  take  a 
recognizance  only  in  the  absence  of  the  police  justice  residing  in  the  same 
town,  and  in  an  action  on  a  recognizance  taken  by  such  justice  of  the  peace, 
it  was  alleged  in  the  answer  that  such  police  justice  was  not  absent  from  the 
town  when  such  recognizance  was  taken,  but  no  proof  on  that  point  was 
introduced  on  the  trial,  it  was  held  that  the  legal  presumption,  in  the  absence 
of  proof,  was  that  the  justice  of  the  peace  did  not  transcend  his  jurisdiction. 

The  defendant  was  sued  in  the  Supreme  Court,  on  a  recog- 
nizance entered  into  by  him  as  a  bail  of  one  Smith,  conditioned 
for  his  appearance  to  answer  a  criminal  charge.  An  answer 
was  put  in,  by  which  issue  was  joined,  and  the  cause  was 
brought  to  trial  at  the  Dutchess  Circuit,  before  Mr.  Justice 
Dean,  and  was  tried  by  the  court  without  a  jury.  The  ques- 
tions arising  on  the  pleadings  and  the  evidence  at  the  trial  are 
stated  in  the  opinion  of  the  court. 

J.  C.  Campbell,  (Dist.  Att'y,)  for  plaintiff. 
J.  F.  Barnard,  for  defendant 

By  theCourt,  DEAN,  J. — This  is  an  action  on  a  recognizance. 
The  complaint  states  that  on  the  24th  March,  1854,  Henry  A. 
Smith  was  brought  before  a  justice  of  the  peace  in  Poughkeep- 
sie  on  A  warrant  for  larceny.  After  the  usual  exninination,  the 


558  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Mack. 

justice  decided  that  there  was  probable  cause  to  believe  said 
Smith  guilty  of  the  offence  with  which  he  was  charged,  and 
icquired  him  to  give  bail  for  his  appearance  at  the  next  court 
of  Oyer  and  Terminer  to  be  held  in  Dutchess  county,  to  answer 
said  charge,  which  court  was  in  June,  1854.  Thereupon, 
Smith,  with  the  defendant  as  his  surety,  entered  into  a  recog- 
nizance before  the  said  justice  in  the  sum  of  $500  for  the  ap- 
pearance of  Smith  at  the  Oyer  and  Terminer.  Smith  did  not 
appear,  the  recognizance  at  the  June  Oyer  and  Terminer  was 
forfeited,  and  an  order  to  prosecute  entered. 

The  answer  admits  the  facts  in  regard  to  the  arrest  and 
giving  of  the  recognizance,  but  sets  up  as  a  defence  that  the 
justice  of  the  peace  who  took  it  resided  in  the  city  of  Pough- 
keepsie,  and  only  had  jurisdiction  of  the  offence  charged  in 
case  of  the  absence  of  the  police  justice,  and  denies  that  he,  at 
the  time  this  recognizance  was  taken,  had  any  jurisdiction. 

It  further  says  that  a  court  of  sessions  was  regularly  and  le- 
gally appointed  to  be  held  in  Poughkeepsie,  for  the  county  of 
Dutchess,  in  the  second  Monday  of  May,  1854.  That  at  said 
court  a  grand  jury  was  required  to  attend  and  did  attend,  were 
sworn  and  heard  complaints,  and  that  said  recognizance  is  void, 
because  it  did  not  require  the  attendance  of  the  accused  at  the 
next  court  having  cognizance  of  the  offence. 

On  the  trial,  the  facts  stated  in  the  complaint  were  admitted, 
as  were  also  the  appointment  and  holding  of  the  Court  of  Ses- 
sions in  May,  and  the  sitting  of  the  grand  jury  at  that  court. 
No  evidence  was  given  or  offered,  in  reference  to  the  absence 
of  the  police  justice  from  Poughkeepsie,  at  the  time  the  recog- 
nizance was  taken. 

A  justice  of  the  peace  being  an  officer  whose  jurisdiction  in 
criminal  cases  extends  to  every  portion  of  the  county,  and  who 
has  general  power  to  take  a  recognizance  in  cases  where  the 
punishment  does  not  exceed  a  prescribed  limit,  the  legal  pre- 
sumption, in  the  absence  of  proof,  is  that  he  did  not  transcend 
his  jurisdiction. 

The  other  question  is  one  of  more  importance,  and  which  I 
do  not  find  decided  in  any  case.  If  will  be  necessary  therefore 


DUTCHESS,  SEPTEMBER,  1S5-4. 


The  People  v.  Mack. 


to  examine  it  upon  principle.  In  4  Black.  Com.  296,  it  is  said 
the  person  accused,  if  a  case  is  made  out  against  him  before  a 
justice  of  the  peace,  "must  either  be  committed  to  prison  01 
give  bail,  that  is,  put  in  securities  to  answer  the  charge  against 
him.  This  commitment  therefore  being  only  for  safe  custody, 
whenever  bail  will  answer  the  same  intention,  it  ought  to  be 
taken." 

The  same  authors  in  speaking  of  the  nature  of  bail,  calls  it 
"  a  delivery  of  bailment  of  a  person  to  his  securities,  upon  their 
giving  together  with  himself  sufficient  security  for  his  appear 
ance,  he  being  supposed  to  remain  in  their  friendly  custody 
instead  of  going  to  jail."  Instead  therefore  of  being  delivered 
into  the  hands  of  the  sheriff  or  keeper  of  the  jail,  the  prisoner 
is  to  be  kept  by  his  bail.  The  custodian  is  only  changed.  But 
till  what  time  is  his  bail  to  keep  him?  Clearly,  if  no  different 
rule  is  established  by  statute  or  the  common  law,  for  the  same 
time  that  the  keeper  of  the  jail  under  the  commitment  could 
keep  him,  until  the  sitting  of  the  next  court  having  cognizance 
of  the  offence.  Then,  if  the  grand  jury  fail  to  indict,  the  pri- 
soner is  entitled  to  his  discharge.  This  is  the  practice  at  com- 
mon law.  Our  statute,  (2  R.  S.  758,  §26,)  makes  it  the  duty 
of  the  court  of  Oyer  and  Terminer  and  Sessions,  within  twenty- 
four  hours  after  the  discharge  of  the  grand  jury,  to  cause  every 
person  confined  in  the  county  prison,  on  a  criminal  charge,  who 
shall  not  have  been  indicted,  to  be  discharged  without  bail, 
unless  satisfactory  cause  is  shown  for  detaining  him  in  custody, 
or  for  requiring  him  to  give  bail. 

But  besides  this  provision,  which  alone  should  settle  the 
question  as  to  the  time  when  the  bail  is  to  produce  the  principal, 
is  the  provision  of  the  statute,  (2  R.  S.  709,  §§21,  22,)  which 
authorizes  the  magistrate  taking  the  examination  to  require  the 
prosecutor  and  all  the  material  witnesses  against  the  prisoner,  to 
enter  into  a  recognizance  to  appear  and  testify  at  the  next  court 
having  cognizance  of  the  offence  and  in  which  the  prisoner  may 
be  indicted.  The  only  power  that  an  officer  has  to  bind  a  wit- 
ness to  appear  and  testify  is  here  contained.  The  absurdity  of 
requiring  the  witnesses  lo  attend  at  one  court  and  the  prisoner 

VOL.  I.  72 


570 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Moneghan 


at  another  need  only  be  mentioned  to  be  understood.  If  we 
look  at  the  power  of  bail  over  their  principal,  the  necessity  of 
this  limitation  will  be  apparent.  They  have  the  custody  of  the 
principal,  and  may  take  him  at  any  time  or  in  any  place.  His 
dwelling  house  is  no  longer  his  castle,  but  may  be  entered 
without  his  leave  by  day  or  by  night,  on  week  day  or  Sunday. 
The  liberty  of  the  citizen  as  much  requires  that  there  should  be 
some  limitation  as  to  the  time  that  this  custody  shall  continue, 
as  that  the  person  in  actual  confinement  should  be  discharged,  on 
the  failure  of  the  grand  jury  to  indict,  at  the  first  court  after  the 
commitment.  Besides,  if  the  officer  taking  bail  can  require  the 
prisoner  to  give  bail  for  his  appearance  at  the  next  court  but 
one,  why  may  he  not  as  well  put  it  at  the  third  or  fourth  court 
or  even  at  a  longer  period?  If  the  law  does  not  determine  to 
which  court  a  prisoner  shall  be  recognized,  then  it  is  discre- 
tionary with  the  officer  taking  bail,  and  it  might  become  an 
intolerable  means  of  oppression.  I  have  no  doubt  that  the 
common  law  is  well  settled  on  this  subject.  All  the  analogies 
of  our  statutes  are  in  favor  of  this  limitation.  The  defendant 
is  therefore  entitled  to  judgment. 

Judgment  for  defendant. 


SUPREME  COURT.     Monroe  General  Term,  September  1854. 
Johnson,  Welles  and  T.  R.  Strong,  Justices. 

THE  PEOPLE  vs.  MALACHI  MONEGHAN. 

Since  the  act  of  1851,  entitled  "  an  act  in  relation  to  courts  of  Sessions,"(&it. 
Law*  of  1851,  825),  a  court  of  Sessions  can  not  be  held,  except  in  pursuance 
of  a  previous  order  of  a  county  judge,  made  under  the  authority  of  that  act, 
and  in  conformity  therewith,  designating  the  times  for  the  purpose,  and 
published  as  ^therein  directed:  and  when  an  indictment  was  found  at  a  term 
not  legally  appointed  and  a  plea  in  abatement,  setting  up  such  illegality  was 
interposed  and  overruled  by  the  Court  of  Sessions  on  demurrer,  the  case 
having  been  removed  into  the  Superior  Court  by  certiorari  the  conviction 
was  reversed  and  the  proceedings  of  the  sessions  were  quaehed. 


MONROE,  SEPTEMBER,  18J4.  57 J 

The  People,  v.  Moneghan. 

Certiorari  to  the  court  of  sessions  of  the  county  of  Livingston. 
On  the  23d  March  1854,  Malachi  Moneghan  was  indicted  in 
the  Livingston  county  sessions  for  grand  larceny  and  pleaded 
not  guilty.  The  indictment  and  proceedings  having  been 
continued  till  the  next  term  of  said  court,  held  in  May  1854, 
the  prisoner  obtained  leave  to  withdraw  his  plea  of  not  guilty 
and  pleaded  in  abatement  to  the  indictment  as  follows: 

Livingston  County  Sessions.  —  Malachi  Moneghan  ads.  The 
People.  —  And  the  said  defendant  in  his  own  proper  person 
comes  and  defends  the  force  and  injury,  when,  &c.,  and  says 
that  the  said  instrument  purporting  to  be  a  bill  of  indictment 
was  not  found  by  any  grand  jury  duly  empanneled,  charged  and 
sworn,  to  inquire  for  the  people  of  the  state  of  New  York  and 
for  the  body  of  the  county  of  Livingston,  because  he  says  that 
no  term  of  the  county  court  of  said  county  for  the  trial  of 
issues  of  fact  by  a  jury  was  held  on  the  third  Monday  of  March, 
1854,  and  that  no  court  of  sessions  was  appointed  by  any 
order  of  the  county  judge  of  the  county  of  Livingston,  to  be 
held  in  and  for  the  said  county  upon  the  third  Monday  of 
March,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty-four,  otherwise  than  by  an  order  of  which  the  follow- 
ing is  a  copy,  that  is  to  say: 

"  At  a  term  of  the  county  court  of  the  county  of  Livingston, 
held  at  the  court  house  in  Geneseo  in  said  county  on  the  third 
Monday  of  January,  1854.  Present,  Scott  Lord,  county  juc-^e 
It  is  ordered  that  a  grand  jury  shall  be  required  to  attend  the 
terms  of  the  said  court  to  be  held  on  the  third  Mondays  of 
March  and  November  in  each  year,  and  that  no  grand  jury 
shall  be  required  to  attend  at  any  term  of  this  court  except  as 
aforesaid." 

And  this  he  is  ready  to  verify,  &c.,  wherefore,  because  the 
said  alleged  bill  of  indictment  was  not  found  by  any  grand 
jury  duly  empanneled,  charged  and  sworn  to  inquire  for  the 
people  of  the  state  of  New  York  and  for  the  body  of  the  county 
of  Livingston,  the  said  defendant  prays  judgment  of  the  said 
bill  of  indictment  and  that  the  same  be  quashed,  £c. 


57 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  ».  Moneghan. 


And  for  a  further  plea  in  this  behalf,  by  leave  of  the  court 
first  had  and  obtained,  the  said  defendant  says  that  the  said 
instrument  purporting  to  be  a  bill  of  indictment  never  was  pre- 
sented to  any  court  of  competent  criminal  jurisdiction  by  any 
grand  jury  duly  empanneled,  charged  and  sworn  to  inquire  for 
the  people  of  the  state  of  New  York  and  for  the  body  of  the 
county  of  Livingston,  because  he  says  that  no  term  of  the 
county  court  of  said  county  for  the  trial  of  issues  of  fact  by  a 
jury,  was  held  on  the  third  Monday  of  March,  1854,  and  that 
no  court  of  sessions  was  appointed  by  any  order  made  or  pub- 
lished by  the  county  judge  of  the  county  of  Livingston,  to  be 
held  in  and  for  the  said  county  on  the  third  Monday  of  March, 
one  thousand  eight  hundred  and  fifty-four,  otherwise  than  by 
an  order  of  which  the  following  is  a  copy,  that  is  to  say: 

At  a  term  of  the  county  court  of  the  county  of  Livingston, 
held  at  the  court  house  in  Geneseo,  in  said  county  on  the  third 
Monday  in  January,  1854,  present,  Scott  Lord,  county  judge. 

It  is  ordered  that  a  grand  jury  shall  be  required  to  attend  the 
term  of  the  said  court  to  be  held  on  the  third  Mondays  of 
March  and  November  in  each  year,  and  that  no  grand  jury 
shall  be  required  to  attend  at  any  term  of  this  court  except  as 
aforesaid. 

And  this  he  is  ready  to  verify.  Wherefore  because  the  said 
alleged  bill  of  indictment  was  never  presented  to  any  court  of 
competent  criminal  jurisdiction  by  any  grand  jury  duly  empan- 
neled, charged  and  sworn  to  inquire  for  the  people  of  the  state 
of  New  York  and  for  the  body  of  the  county  of  Livingston,  the 
said  defendant  prays  judgment  of  the  said  bill  of  indictment, 
and  that  the  same  be  quashed,  &c.  . 

MALACHI  MONEGHAN. 

To  which  pleas  the  counsel  for  the  people  interposed  the 
following  demurrer: 

And  the  said  the  people  of  the  state  of  New  York,  by  James 
Wood,  Jr.,  district  attorney  as  aforesaid,  come  and  say  that  the 
said  pleas  of  the  said  defendant,  and  the  matters  therein  con- 
tained in  the  manner  and  form  as  the  said  are  above  p.'oaded, 


MONROE,  SEPTEMBER,  1854.  573 

The  People  r.  Moneghan. 

are  not  sufficient  in  law  to  quash  the  said  bill  of  indictment, 
and  that  the  said  people  are  not  bound  by  the  law  of  the  land 
to  answer  the  same.  Wherefore  for  want  of  a  sufficient  plea 
in  this  behalf,  the  said  the  people  of  the  state  of  New  York 
demand  judgment,  and  that  the  said  defendant  may  answer 
further  to  the  said  indictment,  &c. 

The  court  of  sessions  overruled  the  plea  and  gave  judgment 
in  favor  of  the  people;  but  directed  the  district  attorney  to 
bring  the  question  raised  by  the  pleas  and  demurrer,  before  the 
supreme  court  by  certiorari,  and  stayed  all  further  proceedings 
till  the  decision  of  the  supreme  court  should  have  been  ob- 
tained. 

George  F.  Danforth,  for  the  prisoner. 

I.  The  proceedings  of  the  court  convened  on  the  3d  Monday 
of  March,  were  illegal,  null  and  void.     The  law  of  1851,  was 
not  complied  with,  and  if,  by  reason  of  that  noncompliance,  it 
should  be  held  that  the  terms  previously  appointed  for  general 
sessions  were  to  be  held,  i*  may  be  answered  that  at  no  time 
was  a  term  appointed,  of  sessions  for  March,  and  also,  it  is  in- 
sisted that  the  law  of  1851  supersedes  the  statute  under  which 
the  terms  of  general  sessions  were  held. 

II.  By  rule   adopted  in  January,  1853,  (see  Rules  County 
Court,)  the  county  judge  appointed  six  general  terms  of  the 
county  court  to  be  held  on  the  3d  Monday  of  January.  March, 
May,  July,  September  and  November  of  each  year,  and  that  no 
jury  should  be  required  to  attend  the  terms  of  March,  July  and 
November.     By  the  judiciary  act,  art.  5,  §  42,  courts  of  ses- 
sions could  be  legally  held  only  at  the  same  time  at  which 
county  courts  for  the  trial  of  issues  of  fact  by  a  jury  should  be 
held.     The  law  of  1851,  chap.  444,  authorizes  the  county  judge- 
to  designate  the  terms  of  the  sessions  by  order,  which  is  to  be 
published,  and  which  also  shall  designate  the  terms  at  which 
a  grand  or  petit  jury  shall  be  in  attendance.     This  statute  has 
never  been  complied  with,  unless  the  order  made  3d  Monday 
of  January,  1854,  be  dfemed  a  compliance.     But  that  order  is 


574  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Moneghan. 

no  compliance  with  the  statute.  1.  It  refers  only  to  the 
county  court.  2.  It  can  not  by  implication  embrace  the  ses- 
sions, (Bedell  v.  Powell,  3  Code  Rep.  61,)  for  the  courts  are 
distinct,  a.  In  organization,  b.  In  jurisdiction,  c.  And  so 
recognized  in  the  constitution,  and  in  the  code  sec.  9,  code 
sub.  687.  d.  The  order  indirectly  refers  to  the  terms  appointed 
the  year  before. 

James  Wood,  Jr.,  (Dist.  Att'y,)  for  the  people. 

I.  The  court  of  sessions  is  a  creature  of  the  constitution 
Sub.  Division  2  of  sec.  14,  art.  6  of  the  constitution  of  this 
state  provides  that  "  The  county  judge  with  two  justices  of  the 
peace  to  be  designated  according  to  law,  may  hold  courts  of 
sessions  with  such  criminal  jurisdiction  as  the  legislature  shall 
prescribe  and  perform  such  other  duties  as  may  be  required  by 
law."  The  legislature  provided  by  law  for  the  manner  in 
which  **  justices  of  the  sessions  "  should  be  designated.  (Ses- 
sion Laws  of  1847,  chap.  280;  §  40  as  amended,  chap.  470,  §  35.) 
In  this  case  it  appears  from  the  record  that  the  court  of  ses- 
sions which  was  held  in  the  county  of  Livingston  at  the  time 
this  indictment  was  found,  was  held  by  and  "  before  Scott 
Lord,  Esq.,  county  judge  of  said  county,  and  Harvey  J.  Wood 
and  Wm.  J.  Hamilton,  session  justices  duly  assigned  and 
authorized  and  empowered  to  inquire,"  &c.,  so  that  the  court 
was  properly  constituted,  that  is  to  say,  it  was  composed  or 
made  up  of  the  persons  or  officers  that  the  constitution  author- 
izes to  hold  courts  of  sessions.  The  legislature  has  also  pre- 
scribed the  criminal  jurisdiction  of  the  courts  of  sessions. 
Session  Laws  of  1847,  chap,  280,  §  44,  2  Rev.  Stat.  382,  §  4, 
which  were  the  same  power  and  jurisdiction  possessed  and  ex- 
ercised by  the  courts  of  general  sessions  of  the  peace  at  the 
time  of  the  passage  of  the  act  quoted.  The  court  therefore  had 
jurisdiction  "  to  inquire  "  of  the  crime  charged  in  the  indict- 
ment. That  brings  us  to  the  question  of  the  appointment  of 
the  terms  of  the  court  or  the  times  and  places  of  holding  the 
same,  and  it  is  submitted  that  if  the  legislature  had  omitted  to 


MONROE,  SEPTEMBER,  18-34. 


The  People  v.  Moneghan. 


make  provision  for  the  appointment  of  the  terms  of  the  court 
or  of  the  times  arid  places  of  holding  the  same,  the  court  itself 
could  by  rules  or  otherwise  have  appointed  them.  The  first 
provision  for  the  time  and  place  of  holding  courts  of  sessions 
is  contained  in  §42,  chap.  280,  Sessions  Laws  of  1847:  "  courts 
of  sessions  except  in  the  city  and  county  of  New  York,  shall 
be  held  at  the  time  and  place  at  which  county  courts  for  the 
trial  of  issues  of  fact  by  a  jury  of  the  same  county  shall  be 
held,  &c.  This  law  has  not  been  altered  or  repealed,  and  is 
supposed  to  be  in  force  now.  In  1851  the  legislature  passed 
an  act  which  contains  the  following  provision:  §  1.  Courts  of 
sessions,  except  in  the  city  and  county  of  New  York,  shall  be 
held  in  the  respective  counties,  at  such  times  as  the  county 
judge  of  the  county  shall  by  order  designate.  And  the  county 
judge  shall  in  such  order  designate  at  which  terms  of  the  ses- 
sions a  grand  or  petit  jury  or  both  or  neither,  shall  be  required 
to  attend;  and  no  grand  or  petit  jury  shall  be  required  to  be 
drawn  or  summoned  to  attend  any  term  of  the  court  of  sessions 
which  shall  be  designated  by  the  county  judge  to  be  held 
without  such  jury;  such  order  shall  be  published  in  a  news- 
paper printed  in  such  county  for  four  successive  weeks  previous 
to  the  time  of  holding  the  first  term  of  said  court  under  such 
order.  (Session  Laws  of  1851,  ch.  444;  2  Rev.  Stat.  381;  §  1; 
4  edition.')  The  court  was  held  pursuant  to  an  order  made  by 
the  county  judge  under  the  authority  conferred  by  that  statute. 
It  is  submitted  that  the  order  is  sufficient  and  a  substantial 
compliance  with  the  statute. 

II.  The  court  was  legally  he  d  everi  if  there  has  been  no 
order  of  the  county  judge  designating  the  time  for  holding  it  as 
provided  in  the  act  last  above  referred  to.     It  is  not  necessary 
for  the  county  judge  to  make  such  order,  to  give  the  court  of 
sessions  jurisdiction.     The  act  in  question  is  not  imperative 
but  directory.     (Smith  Com.  782  to  789;  see  sec.  679.) 

III.  The  object  of  the  statute  which  authorizes  and  directs 
the  county  judge  to  designate  by  order  the  time  and  place  of 
holding  the  terms  of  the  courts  of  session  is,  that  all  persons 
interested  may  have  notice.     The  same  rule  then  should  be 


576  DECISIONS  IN   CRIMINAL  CASES. 

The  People  v.  Moneghan. 

applied  to  this  order  that  we  should  apply  to  test  the  validity 
and  sufficiency  of  a  notice.  It  is  a  well  settled  rule  that  if  a 
notice  which  a  statute  or  rule  of  court  directs  to  be  given,  is 
sufficient  to  apprize  the  party  of  what  is  intended,  so  that  he  is 
not  misled  thereby,  it  will  be  held  sufficient.  If  that  rule  is  to 
be  applied  to  the  order  complained  of,  it  must  dispose  of  the 
case,  for  no  one  was  or  could  be  misled  by  it,  or  read  it  with- 
out understanding  that  the  "  county  court  "  named  and  referred 
to  as  "  this  court,"  was  intended  for,  and  referred  to,  the  court 
of  sessions. 

IV.  The  question  raised  is  one  purely  technical,  and  is  not 
entitled  to  any  special  favor  from  this  court.  It  is  not  pre- 
tended that  any  injury  has  resulted  to  the  defendant,  or  that 
his  rights  or  liberty  has  in  any  way  been  jeoparded.  The 
indictment  has  been  fairly  found  and  properly  presented  by  a 
grand  jury  duly  drawn,  summoned,  empanneled  and  sworn.  If 
the  demurrer  is  sustained,  it  is  in  effect  deciding  that  all  of  the 
proceedings  of  the  court  of  sessions,  had  at  the  term  at  which 
this  indictment  was  found,  are  illegal  and  void  It  is  proper 
to  state  that  there  were  found  and  presented  to  the  court  at 
that  term,  by  the  grand  jury,  28  indictments,  15  of  which  were 
for  felonies. 

By  the  Court ,T.  R.  STRONG,  J.  —  It  is  provided  by  the  con- 
stitution, (article  6,  section  14,)  that  "  the  county  judge,  with 
two  justices  of  the  peace  to  be  designated  according  to  law, 
may  hold  courts  of  sessions,  with  such  criminal  jurisdiction  as 
the  legislature  shall  prescribe,  and  perform  such 'other  duties 
as  may  be  required  by  law."  The  legislature  by  article  5,  sec- 
tion 42,  of  the  judiciary  act,  enacted  that  "  courts  of  sessions, 
except  in  the  city  and  county  of  New  York,  shall  be  held  at 
the  time  and  place  at  which  county  courts  for  the  trial  of 
issues  of  fact  by  a  jury  of  the  same  county  shall  be  held,  and 
the  same  number  of  grand  and  petit  jurors  shall  be  drawn  and 
summoned  therefor,  and  attend,  the  same  as  is  now  required  for 
courts  of  general  sessions  of  the  peace,  in  the  same  county." 
(Laws  of  1847,  331,  2.)  In  1851,  the  legislature  passed  an 


MONROE,  SEPTEMBER,  1854.  577 

The  People  v.  Moneghan. 

act  in  these  words:  "  courts  of  sessions  except  in  the  city  and 
county  of  New  York,  shall  be  held  in  the  respective  counties 
at  such  times  as  the  county  judge  of  the  county  shall  by  order 
designate.  And  the  county  judge  shall  in  such  order  designate 
at  which  terms  of  the  sessions  a  grand  or  petit  jury  or  both,  or 
neither  shall  be  required  to  attend;  and  no  grand  jury  or  petit 
jury  shall  be  required  to  be  drawn  or  summoned  to  attend  any 
term  of  the  courts  of  sessions  which  shall  be  designated  by  the 
county  judge  to  be  held  without  such  jury;  such  order  shall  be 
published  in  a  newspaper  printed  in  such  county,  for  four  suc- 
cessive weeks  previous  to  the  time  of  holding  the  first  term  of 
said  court  under  such  order."  These  acts  were  within  the  con- 
stitutional power  of  the  legislature;  and  no  court  of  sessions 
could  be  legally  held,  or  transact  any  business,  before  the  last 
named  act,  except  at  the  times  and  places  regularly  appointed 
for,  and  at  which  should  be  held,  the  terms  of  the  county 
court  in  the  same  county  for  the  trial  by  jury  of  issues  of  fact; 
nor  since  that  act  can  a  court  of  sessions  be  held  at  any  other 
times  except  in  pursuance  of  a  previous  order  of  the  county 
judge,  made  under  Ihe  authority  of  that  act,  and  in  conformity 
therewith,  designating  such  times  for  the  purpose,  and  published 
as  therein  directed.  Whether  the  first  named  act  remains  in 
force  in  each  county,  until  an  order  be  made  by  the  worthy 
judge  specifying  the  times  for  holding  the  court  of  sessions 
therein,  and  published  according  to  the  subsequent  act,  it  is 
not  necessary  now  to  determine. 

The  indictment  in  the  present  case  was  filed  the  23d  of 
March,  1854,  and  it  is  stated  in  the  caption  thereof  to  have 
been  found,  "  at  a  court  of  sessions  holden  at  the  court  house 
in  the  town  of  Geneseo,  in  and  for  the  county  of  Livingston, 
on  the  third  Monday  of  March,"  1854.  It  is  alleged  in  the  plea 
of  the  defendant,  that  no  term  of  the  county  court  of  said 
county  for  the  trial  of  issues  of  fact  by  a  jury,  was  held  on  the 
third  Monday  of  March,  1854,  and  that  no  court  of  sessions 
was  appointed  by  any  order  of  the  county  judge  of  that  county 
to  be  held  at  that  time,  otherwise  than  by  an  order  of  whicb  a 

VOL.  I.  73 


578  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Moneghan. 

copy  is  therein  given.  This  allegation  is  admitted  by  the  de- 
murrer. 

The  order  is  in  these  words:  "  At  a  term  of  the  county  court 
of  the  county  of  Livingston,  held  at  the  court  house  in  Geneseo, 
in  said  county  on  the  third  Monday  of  January,  1854.  Present, 
Scott  Lord,  county  judge.  It  is  ordered  that  a  grand  jury  shall 
be  required  to  attend  the  terms  of  said  court  to  be  held  on  the 
third  Mondays  of  March  and  November  in  each  year,  and  that 
no  grand  jury  shall  be  required  to  attend  at  any  term  of  this 
court  except  as  aforesaid."  It  is  contended  by  the  counsel  for  the 
defendant,  that  here  is  no  valid  designation  of  the  times  for 
holding  the  courts  of  sessions;  and  I  am  of  that  opinion.  No 
court  is  named,  or  alluded  to  by  the  language  employed,  be- 
sides the  county  court;  it  is  the  terms  specified  of  that  court  a 
grand  jury  is  required  to  attend;  and  there  is  nothing  ambig- 
uous in  the  order.  All  acquainted  with  the  organization  of 
the  judicial  department  of  our  state,  and  the  laws  relating 
thereto,  can  not  fail  to  understand  that  the  learned  officer  who 
made  the  order  did  not  intend  by  it  what  it  expresses,  but  de- 
signed to  appoint  two  of  the  terms  of  the  court  of  sessions; 
this  understanding  however  can  only  be  obtained  by  going  out 
of  the  order,  and  looking  at  the  fa'cts,  that  a  county  court  has  no 
power  to  direct  the  summoning  of  a  grand  jury  for  that  court; 
that  their  attendance  upon  it  would  be  useless;  looking  also  at 
the  aforesaid  acts  of  the  legislature;  and  regarding  the  whole  of 
this  extensive  matter  in  connection  with  the  order,  and  draw- 
ing an  inference  therefrom.  An  order  which  requires  this 
knowledge  and  process  to  learn  what  was  intended  by  it,  is  not 
a  valid  designation  of  the  times  for  holding  a  court  of  sessions 
under  the  act  of  1851. 

If  I  am  right  in  the  views  expressed,  all  the  proceedings  in 
March  in  relation  to  the  case  were  void;  hence  there  was  no 
valid  indictment  upon  which  the.  defendant  could  be  tried. 

The  conviction  must  be  set  aside,  and  all  proceedings  of  the 
sessions  quashed. 


MONROE,  SEPTEMBER,   ,854  5-79 


SUPREME  COURT.      Monroe  General  Term,  September  1854. 
Before  Johnson,  Welles  and  T.  R.  Strong,  Justices- 

THE  PEOPLE  vs.  JAMES  HENRIES. 

No  peremptory  challenges  are  allowable  to  the  people  in  criminal  cases. 

The  statute  of  1847,  entitled   "  an  act  to  provide  for  additional  challenges  to 

juors,"  has  not  changed  the  law  in   respect  to  challenges  by  the  people  in 

criminal  cases. 
A  court  of  sessions  has  not  jurisdiction  to  try  an  indictment  for  robbery  in  the 

first  degree,  that  offence  being  punishable  in  the  state  prison  for  life;  a  trial 

and  conviction  in  such  case  are  utterly  void. 

Certiorari  to  the  Yates  county  sessions.  The  prisoner  was 
indicted,  at  the  Yates  Oyer  and  Termmer,  for  robbery  in  the 
first  degree,  and  the  indictment  was  sent  to  the  Yates  comity 
sessions  for  trial.  The  prisoner  having  pleaded  not  guilty,  the 
case  came  on  for  trial  before  said  court  of  sessions  on  the  16th 
of  May,  1854,  before  Lewis,  county  judge  and  the  justices  of 
the  sessions. 

On  the  trial,  the  clerk  proceeded  in  the  usual  way  to  draw 
and  caH_the  jury,  and  before  twelve  jurors  had  been  drawn  and 
empanneled,  the  clerk  drew  and  called  one  William  A.  Pelton 
as  a  juror;  said  Pelton  answered  to  the  call,  but  was  peremp- 
torily challenged  by  the  district  attorney,  who  claimed  the  right 
of  a  peremptory  challenge,  to  which  the  counsel  for  the  prisoner 
objected.  The  court  overruled  the  objection  aud  decided  that 
the  district  attorney  was  entitled  to  two  peremptory  challenges, 
and  that  the  challenge  to  the  juror  Pelton  was  well  taken,  and 
directed  the  said  juror  to  stand  aside,  to  which  decision  the 
counsel  for  the  prisoner  excepted.  The  juror  thereupon  stood 
aside,  and  another  was  drawn  and  empanneled  in  his  place. 
The  trial  proceeded,  and  the  prisoner  was  found  guilty  on  the 
first  count  of  the  indictment,  and  not  guilty  as  to  the  other 
counts.  The  cause  having  been  brought  before  this  court  on  a 
bill  of  exceptions,  the  prisoner's  counsel  moved  for  a  reversal 
and  for  a  new  trial. 

E.  Van  Buren,  for  the  prisoner. 

Ji.  V.  Harpending,  (Dist.  Att'y,)  for  the  people. 


590  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Henries. 

The  public  prosecutor  on  the  trial  of  an  indictment,  is  enti- 
tled to  the  same  number  of  peremptory  challenges  that  are  al- 
lowed 1o  parties  in  civil  actions,  because  the  act  of  April,  27, 
1847,  to  provide  for  additional  challenges  to  jurors,  and  the 
provisions  of  revised  statutes  respecting  challenges  to  jurors  are 
in  part  materia,  and  must  be  construed  as  if  they  formed  parts 
of  the  statute,  and  were  enacted  at  the  same  time.  (  Wat  erf  or  d 
and  Whitehall  Turnpike  Co.  v.  The  People,  9  Barb.  161,  and  the 
cases  there  cited;  2  R.  S.  4th  ed.  917,  §  13  and  16,  Laws  of 
1847,  p.  130.) 

By  the  Court,  T.  R.  STRONG,  J. — By  the  common  law  of 
England,  as  modified  by  the  statute  33  Edw.  I,  4,  the  crown 
was  allowed  a  challenge  to  jurors  without  assigning  his  cause 
of  challenge  until  the  panel  was  gone  through;  but  if  a  full 
jury  was  not  then  obtained  he  was  required  to  state  the  cause, 
which  was  to  be  inquired  of  by  the  court.  Beyond  this  there 
was  no  peremptery  challenge  on  the  part  of  the  crown.  (4  Bl. 
Com.  353,  1  Chit.  Crim.  Law,  534  and  cases  cited.]  This  was 
the  law  of  the  colony  of  New  York  at  the  time  of  the  revolution, 
and  was  adopted  by  this  state,  the  people  occupying  the  place 
of  the  crown.  (Const,  of  1777,  §35.)  On  the  19th  of  April, 
1786,  an  act  was  passed  in  this  state,  by  section  twenty-two  of 
which  it  was  provided,  "  that  in  all  cases  where  the  attorney 
general  of  this  state,  in  behalf  of  this  state,  or  he  who  shall  in 
any  case  prosecute  for  the  people  of  this  state,  shall  challenge 
any  juror  as  not  indifferent,  or  for  any  other  cause,  he  who  shall 
make  any  such  challenge,  shall  immediately  assign  and  show 
the  cause  of  such  challenge,  and  the  truth  thereof  shall  be  in- 
quired of  and  tried,  in  the  same  manner  as  the  challenges  of 
other  parties  are  or  ought  to  be  inquired  of  and  tried."  (1 
Greenleaf's  Laws,  261.)  This  section  must  have  been  intended 
to  abrogate  the  right  of  challenge  without  showing  cause;  and 
I  think  it  did  so.  Unless  such  was  its  object,  I  do  not  perceive 
any  reason  for  it,  nor  unless  it  had  that  effect,  do  I  perceive 
that  any  thing  was  accomplished  by  it.  It  is  not  merely  de- 
claratory, for  it  changes  the  common  law  rule  by  requiring 


MONROE,  SEPTEMBER,  1854. 


T'«.e  People  v.  Henries. 


cause  to  be  shown  in  all  cases  of  challenge  in  behalf  of  the 
people,  and  immediately  on  the  making  thereof.  The  provision 
of  this  section  was  continued  in  the  revisions  of  1801  (1  Kent 
and  Brad.  385,  §25)  and  1813,  (1  R.  L.  334,  §25,)  a  proviso 
being  added,  that  nothing  in  that  act  contained  should  be  con- 
strued to  take  away  the  right  of  peremptory  challenge  in  any 
cases  where  the  same  were  then  allowed  by  law.  The  purpose 
of  this  proviso  is  not  apparent;  it  may  have  been  to  prevent  an 
implication  from  the  latter  clause  of  the  provision  affecting  the 
right  to  a  peremptory  challenge  by  a  defendant;  but  whatever 
may  have  been  its  object,  I  do  not  think  it  restored  to  the  peo- 
ple the  right  of  challenge  without  assigning  a  cause  —  or  a  pe- 
remptory challenge  —  as  it  formerly  existed.  If  the  legislature 
had  entertained  such  an  intention,  it  would  have  been  mani- 
fested in  very  different  terms,  and  another  way.  The  revised 
statutes  of  1830  contain  a  section  in  relation  to  challenges  in 
behalf  of  the  people  —  which  is  the  only  provision  therein  on 
the  subject  —  in  these  words:  "  The  attorney  general,  or  district 
attorney  prosecuting  for  the  people  of  this  state,  shall  be  enti- 
tled to  the  same  challenges  in  behalf  of  this  state,  either  to  the 
array  or  to  individual  jurors,  as  are  allowed  to  parties  in  civil 
cases,  and  the  same  proceedings  shall  be  had  thereon  as  in  civil 
actions."  This  section  is  a  revision  of  the  statute  of  1813 
before  referred  to,  and  a  substitute  for  it,  and,  in  ray  opinion, 
restricts  the  right  of  challenge  in  behalf  of  the  people  to  the 
limits  therein  specified. 

In  1830,  no  challenge  was  allowable  in  civil  cases,  either  at 
common  law  or  by  the  revised  statutes  of  that  year,  except  for 
special  cause  shown.  If  the  people  were  after  that  revision 
entitled  only  to  the  same  challenges  as  parties  in  civil  cases,  it 
was  necessary  thai  their  cause  of  challenge  should  in  every  case 
be  stated,  and  judged  of  by  the  court.  In  1847,  an  act  was 
passed,  the  first  section  of  which  is  in  these  words:  "  Upon  the 
trials  of  any  issue  or  issues  of  fact,  joined  in  a  civil  action,  each 
party  shall  be  entitled  peremptorily  to  challenge  two  of  the 
persons  drawn  as  jurors  for  such  trials."  By  the  second  section, 
the  right  of  peremptorily  challenging  a  limited  number  of  ju- 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Henries. 


rors  is  given  to  a  defendant  in  criminal  cases  where  it  did  not 
before  exist;  and  by  the  third  section  it  is  declared  that  nothing 
in  the  act  contained  shall  be  deemed  to  prevent  any  challenges 
theretofore  allowed  either  to  the  array  or  to  individual  jurors. 
It  is  claimed  on  the  part  of  the  people  that  the  first  section  of 
this  act,  and  the  section  of  the  revised  statutes  allowing  the 
people  the  same  challenges  as  are  allowed  to  parties  in  civil 
cases,  are  in  pari  matcria,  and  must  be  construed  as  if  they 
proved  parts  of  the  same  statute,  and  were  enacted  at  the  same 
time  5  hence,  that  the  people  are  in  every  criminal  case  entitled 
to  two  peremptory  challenges.  The  rule  is  well  established 
that  statutes  in  pari  materia  must  be  construed  with  a  refer- 
ence to  each  other,  but  I  think  it  is  inapplicable  to  this  case, 
The  statutes  in  question  are  upon  entirely  different  subjects; 
the  first  relates  to  challenges  in  criminal  cases,  and  refers  to 
civil  cases  merely  for  description;  the  other  relates  to  civil  cases 
only.  There  is  nothing  in  the  act  of  1847  indicating  an  inten- 
tion to  extend  the  right  of  challenge  in  behalf  of  the  people  in 
criminal  cases,  nor  in  the  revised  statutes,  manifesting  that  it 
was  contemplated  that  the  right  of  the  people  was  to  be  en- 
larged or  diminished  as  the  right  of  challenge  in  civil  cases 
might  be  varied.  I  am  satisfied  that  the  act  of  1847  has  not 
changed  the  law  as  it  stood  before,  in  respect  to  challenges  by 
the  people  in  criminal  cases,  and  that  no  peremptory  challenges 
by  them  are  allowable. 

The  views  here  presented  and  conclusions  arrived  at,  are 
in  conflict  with  those  in  the  President,  4'C.  of  Waterford  and 
Whitehall  Turnpike  v.  The  People,  (9  Barb.  161,)  in  which  one 
of  the  members  of  the  court  dissented,  but  they  are  supported 
by  the  decisions  in  The  People  v.  Aichinson,  reported  in  7  How. 
Prac.  Rep.  241.  The  latter  case  was  in  the  Oyer  and  Terminer, 
but  the  opinion  was  delivered  by  the  presiding  justice  —  a  mem- 
ber of  this  court  —  and  evidently  after  a  careful  examination. 
In  both  cases  the  same  question  as  in  the  present  was  involved 
and  necessarily  decided. 

There  is  another  reason  in  this  case  why  a  new  trial  should 
be  granted.  The  sessions  had  not  jurisdiction  to  try  the  indict- 


KINGS,  OCTOBER,  1S34.  593 

Smith  and  Bunce  v.  The  People. 

ment,  as  the  punishment  upon  conviction  might  be  imprison- 
ment for  life,  (a)  (Laws  of  1847,  332,  §  44;  2  R.  S.  208,  §  5, 
Sub.  2,  677,  §§  55,  678  and  57;  TAe  Peop/e  v.  Mot,  19  TTenJ. 
192.)  The  trial  and  conviction  are  utterly  void. 

Conviction  reversed,  and  new  trial  granted. 


SUPREME  COURT.      Kings  General  Term,  October  1854.      Be- 
fore Dean,  Brown  and  Strong,  Justices. 

SMITH  &  BUNCE  pl'ffs  in  error  vs.  THE  PEOPLE  def  ts  in  error. 

The  statute  requiring  a  license  to  sell  strong  and  spirituous  liquors  in  small 
quantities,  does  not  conflict  with  the  8th  and  10th  sections  of  the  constitution 
of  the  United  States. 

A  state  has  the  right,  iu  adopting  general  regulations  in  regard  to  its  internal 
affairs,  to  impose  restrictions  on  the  sale  of  goods,  and  to  license  persons  to 
pursue  a  particular  business,  and  the  exercise  of  such  power  on  the  part  ol 
the  state,  will  not  be  deemed  an  imposition  of  an  additional  duty  upon  im- 
ports, though  such  restrictions  and  license  extend  to  imported  goods,  as  well 
as  to  those  of  domestic  origin. 

Writ  of  error  to  the  Suffolk  county  sessions  The  plaintiffs 
in  error,  merchants,  of  the  town  of  Huntington,  in  the  county 
of  Suffolk,  were  indicted  for  an  alleged  violation  of  the  statute 
entitled  "  Of  Excise  and  the  Regulation  of  Taverns  and  Gro- 
ceries." 

The  indictment  set  forth  that  the  defendants  therein,  at  va- 
rious times  during  the  summer  of  1853,  at  the  town  of  Hunt- 
ington aforesaid,  did  willfully,  unlawfully  and  wrongfully  sell 
to  divers  persons  strong  and  spirituous  liquors  and  wines  in 

(a)  The  statute  authorizes  a  court  of  sessions  to  hear,  determine  and  punish, 
according  to  law.  all  crimes  and  misdemeanors  not  punishable  with  death,  or 
imprisonment  in  the  state  prison  for  life.  Though  robbery  in  the  first  degre« 
may  be  punished  by  imprisonment  for  ten  years,  it  is  also  punishable  by  im- 
prisonment for  life.  A  similar  construction  was  put  upon  the  words  liable  to 
be  punished  in  the  People  v.  Van  Steeubur^h,  supra,  36. 


584  DECISIONS  IN  CRIMINAL  CASES. 

Smith  and  Bunce  v.  The  People. 

\ 
quantities  less  than  five  gallons    at  a  time,  without  a  license 

therefor.    The  defendants  were  arraigned  and  demanded  a  trial, 
The  following  evidence  was  given  for  the  prosecution: 

Richard  Ji.  Udall  being  sworn,  said — I  reside  at  Islip;  I  am 
acquainted  with  the  defendants;  they  are  merchants  in  Babylon, 
in  the  town  of  Huntington.  I  purchased  liquor  at  their  store 
previous  to  the  last  court  in  September;  paid  for  it;  I  don't  re- 
member whom  I  bought  it  of,  or  whom  I  paid.  Sometimes  they 
have  two,  sometimes  three  clerks;  Silas  Udall  is  one  of  them. 
One  or  the  other  of  these  clerks  is  generally  about  the  store;  I 
don't  know  what  part  of  the  store  the  liquor  is  got  from;  I  have 
got  a  gallon  or  two,  or  three,  at  a  time;  I  would  hand  the  clerk 
rny  vessel  and  tell  him  what  I  wanted,  and  that  is  all  I  know 
about  it;  within  years  past  I  have  had  it  of  one  or  other  of  the 
defendants;  but  since  the  fifth  of  May  last,  I  don't  think  I  have. 
1  suppose  them  to  be  partners;  I  have  had  liquor  from  the  store 
several  times  since  the  first  of  May. 

On  being  cross-examined,  witness  said — I  can't  say  that  I 
have  purchased  liquors  of  the  defendants  themselves  since  the 
fifth  of  May. 

Nathan  E.  Basset,  another  witness  for  the  prosecution,  being 
sworn,  said — I  reside  at  Babylon;  I  know  the  defendants;  I  have 
bought  liquor  at  their  store  since  the  fifth  of  May  last  The 
defendants  are  proprietors  of  the  store.  I  have  bought  five  gal- 
lons and  less,  at  a  time,  and  paid  for  it,  frequently. 

On  being  cross-examined,  witness  said — I  am  not  positive  I 
ever  got  it  of  the  defendants  themselves;  I  generally  got  it  of 
the  boys,  the  clerks.  The  Board  of  Excise  of  the  town  of 
Huntington,  met  at  Ezra  Smith's  at  Long  Swamp,  the  first 
Monday  of  May  last;  a  meeting  called  of  the  kind.  I  was  pre- 
sent. The  board  consisted  of  Zopher  B.  Oakley,  supervisor, 
and  Platt  R.  Hubbs  and  Timothy  Carll,  justices,  and  a  man  by 
the  name  of  Shepard.  I  applied  for  a  license;  the  defendants 
also  applied  for  one,  and  rising  twenty  others.  We  did  not  get 
a  license. 

The  direct  examination  being  resumed,  witness  said — Some- 
times when  I  have  been  in  the  store  after  liquor,  one  or  the 


KINGS.  OCTOBER,  1854. 


Smith  and  Bunce  v.  The  People. 


other  of  the  defendants  would  be  present;  sometimes  1  oth;  the 
liquor  is  kept  in  the  cellar;  there  is  a  door  that  leads  out  of  the 
cellar  into  the  street;  I  generally  take  the  liquor  oul  of  this 
door  where  I  went  in  for  it,  and  would  pay  the  boys  for  it 
there. 

The  defendants'  counsel  asked  the  court  to  charge  tl  e  j'iry: 

1.  That  the  principal  or  employer  is  not  criminally  liable  for 
the  wrongful  act  of  his  clerk  or  apprentice;  and 

2.  That  the  excise  law  of  1830,  under  which  this  indictment 
is  found,  is  repugnant  to  the  provisions  of  the  eighth  and  tenth 
sections  of  the  constitution  of  the  United  States,  and  therefore 
void. 

But  the  judge  charged,  that  if  the  clerks  had  sold  liquors 
{here  under  the  authority  of  the  defendants,  and  with  th>:ir  know- 
ledge, then  the  defendants  are  liable. 

And  that  the  excise  law  is  not  repugnant  to  any  provisions  of 
the  constitution  of  the  United  States,  but  that  it  is  constitutional 
and  valid.  To  each  of  which  the  defendants'  counsel  excepted, 
and  brought  a  writ  of  error  to  this  court. 

A.  T.  Rose,  for  plaintiffs  in  error. 

I.  The  principal,  or  employer,  is  not  criminally  liaMe  for  the 
wrongful  or  criminal  acts  of  his  clerk,  agent  or  servant.  (Pat- 
terson v.  The  State,  21  Ma.  R.  571.)     The  act  complained  of, 
and  for  which  the  plaintiffs  in  error  were  indicted,  is  made  a 
misdemeanor  by  statute,  punishable  by  fine  and  irap/isonment. 
(28£/i  section  of  the  statute  entitled  "  Of  Excise  and  the  Regu- 
lation of  Taverns  and  Groceries"  1  Rev.  Stat.  676,  2d  ed.)  There 
was  no  proof  that  the  plaintiffs  in  error  had  done  or  committed 
the  act  charged  in  the  indictment 

II.  That  portion  of  the  excise  law  which  provides  for  grant- 
ing licenses  to  sell  "  strong  and  spirituous  liquors  and  wines," 
is  void,  it  being  repugnant  to  the  eighth  and  tenth  sections  of 
the  constitution  of  the  United  States.     And,  as  u  necessary 
consequence,  all  the  enactments  or  provisions  in  the  said  excise 

VOL.  I.  74 


586  DECISIONS  IN  CRIMINAL  CASES. 

Smith  and  Bunce  p.  The  People. 

law,  connected  with  such  licenses,  or  declaring  the  penalties 
and  forfeitures  for  selling  without  them,  are  also  void.  ( 1  Kent's 
Com.  313;  Brown  v.  The  State  of  Maryland,  12  Wheaton's  R 
419.) 

W.  Wickham,  Jr.,  (Dist.  Att'y,)  for  defendants  in  error. 

I.  The  sale  of  liquor  by  the  clerks  of  the  defendants,  in  their 
store,  under  their  authority  and  with  their  knowledge,  was  a 
sale  by  the  defendants  themselves.     (The  People  v.  Hulbut,  4 
Denio,  R.  133;   State  v.  Dow,  21  Vermont  R.  (6  Washburn, 
484.)     1.  The  testimony  fully  warranted  the  jury  in  the  con- 
clusion that  the    sale  was  by  the  immediate  direction  of  the 
defendants.     But   if  it  did  not,  the  judgment  will  not  be  re- 
versed for  that  cause.     A  bill  of  exceptions  lies  only  to  bring 
up  exceptions  taken  at  the  trial  to  the  decision  of  the  court 
upon  the  evidence,  or  to  the  charge  given  to  the  jury.     (The 
People  v.  Dalton,  15  Wend.  R.  581;  The  People  v.  Haynes,  14 
Wend.  R.  546.)     2.  The  offence  of  selling  spirituous  liquors 
may  be  established  by  circumstantial  evidence.     (Vallance  v. 
Everts,  3  Barb.  R.  553;  The  People  v.  Hulbut,  4  Denio  R.  133.) 
3.  All  who  authorize,  aid  or  abet  the  commission  of  a  misde- 
meanor are  principal  offenders.  (1  Chitty's  Criminal  Law,  261; 
The  People  v.  Irwin,  4  Denio  R.  129.) 

II.  The  provisions  of  the  statute  requiring  a  license  for  sell- 
ing strong   and  spirituous  liquors   in  small  quantities,  do  not 
conflict  with  any  provision  in  the   constitution  of  the  United 
States.     (Ingersoll  v.  Skinner,  1   Denio  R.  540;  set;  Pierce  v. 
New  Hampshire,  fyc.,  5  Howard,  U.  S.  Reports,  504.)     1.  The 
sum  required  to  be  paid  for  a  license,  is  neither  a  duty,  impost, 
or  excise,  within  the  meaning  of  the  constitution.     It  does  not 
relate  to  the  importation  or  exportation  of  the  liquor,  and  the 
amount  does  not  at  all  depend  upon  the  quantity  of  liquor  sold 
or  consumed.     (See  Nevin  v.  Ladut    3  Denio,  437,  444.)     2. 
Revenue  is  not  the  object  of  the  license  law,  but  it  is  intended 
as  a  protection  against  the  consequences  of  an  unlimited  traffic 
in  strong  liquor.     (Griffith  v  Wells,  3  Denio,  226  ) 


KINGS,  OCTOBER,  1854. 


Smith  and  Bunce  r.  The  PeopU. 


By  the  Court,  S.  B.  STRONG,  J.  —  This  is  an  excise  case.  The 
defendants  dispute  the  right  of  a  state  legislature  to  impose  a 
duty  or  tax  upon  persons  licensed  to  sell  spirituous  liquors,  on 
the  ground  that  congress  alone  has  the  power  to  impose  duties 
upon  liquors  from  foreign  countries. 

After  the  repeated  decisions  of  the  courts  of  this  state,  it  is 
too  late  to  contend  that  the  payment  of  dulies  upon  goods 
imported  from  foreign  countries  operates  as  an  absolute  and 
incontrovertible  license  to  sell  them.  If  it  would,  it  would 
restrict  the  state  legislature  from  adopting  the  most  necessary 
police  regulations;  a  power  so  essential  to  their  well  being,  if 
not  to  their  political  continuance,  that  it  can  not  be  inferred  that 
the  framers  of  our  national  constitution  intended  to  abrogate  it. 

But  it  is  said  that  the  power  to  impose  duties,  and  the  pro- 
vision that  they  shall  be  uniform,  evince  the  intent  to  make  the 
power  exclusive  of  any  state  interference.  That  is  so.  Doubt- 
less no  state  can  impose  any  additional  duty  upon  the  import- 
ation of  foreign  goods.  Possibly  no  specific  duty  can  be 
imposed  on  them  when  sold.  The  state,  however,  has  the  right 
to  adopt  general  regulations  in  reference  to  its  internal  affairs, 
which  shall  include  imported  goods  equally  with  those  of  do- 
mestic origin.  Thus  they  can  tax  both  together.  So  they  can, 
when  in  their  opinion  the  public  good  requires  it,  impose 
restrictions  upon  their  vendition,  as  in  the  instances  of  licenses 
to  pedlers,  the  imposition  of  duties  upon  goods  sold  at  auction, 
and  the  restrictions  upon  the  sales  of  medicines  by  apothecaries 
in  New  York  city.  If,  in  order  to  make  the  statutory  provisions 
the  more  effectual,  it  is  deemed  necessary  to  impose  a  duty 
upon  the  pursuit  of  any  particular  business,  that  would  seem  to 
be  the  appropriate  exercise  of  an  essential  part  of  a  conceded 
power.  It  is  not  the  imposition  of  a  duty  upon  the  importation 
of  foreign  goods,  although  the  sale  of  such  goods  be  a  part  of 
the  regulated  business,  nor  is  it  a  du:y  at  all  upon  such  goods. 
In  the  case  under  consideration,  it  is  a  tax.upon  business,  upon 
the  vendition  of  spirits  generally  ;  both  those  imported  and  those 
of  domestic  origin.  It  surely  can  be  no  objection  to  a  charge 
for  a  license  to  pursue  a  particular  occupation,  that  the  grantee 


588  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Cavanagh. 

may  deal  to  some,  or  a  considerable  extent,  in  foreign  goods  on 
which  duties  have  been  paid. 

The  judgment  must  be  affirmed. 


SUPREME  COURT.     At  Chambers,  Brooklyn,  October  7,  1854. 
Before  Dean,  Justice. 

THE  PEOPLE  vs.  JOHN  CAVANAGH. 

Upon  a  conviction  at  the  Oyer  and  Terminer,  it  is  not  sufficient  to  state  in  the 
entry  of  judgment  in  the  minutes,  under  the  requirement  of  2  R.  S.  738,  §  5, 
that  the  defendant  was  convicted  of  a,  felony  or  a  misdemeanor,-  but  the  par- 
ticular offence  should  be  stated. 

And  where  a  person  is  imprisoned  under  such  conviction,  the  particular  kind 
of  offence  of  which  he  has  been  convicted  should  appear  in  the  commitment, 
that  it  may  be  seen  whether  the  punishment  awarded  was  warranted  by  the 
offence. 

The  penitentiary  being  provided  by  law  for  the  imprisonment  of  persons 
convicted  in  the  county  of  Kings,  who  shall  be  sentenced  to  imprisonment 
for  a  term  not  less  than  thirty  days,  it  is  illegal,  in  that  county,  to  sentence 
a  person  so  committed  to  imprisonment  in  the  county  jail. 

The  prisoner  who  had  been  confined  in  the  common  jail  of 
Kings  county,  was  brought  up  on  habeas  corpus.  The  return 
of  the  sheriff  and  the  other  facts  involved,  are  set  forth  in  the 
opinion  of  the  court, 

S.  Sanxay,  for  the  prisoner,  claimed  that  he  was  illegally 
detained,  on  the  ground  that  the  entry  of  conviction  and  the 
commitment  did  not  state  the  particular  offence  for  which  they 
haJ  been  convicted,  misdemeanor  being  a  general  term,  and 
not  sufficiently  explicit;  and  also  that  he  should  have  been 
sentenced  to  imprisonment  in  the  penitentiary  arid  not  in  the 
county  jail. 

JR.  C.  Underbill,  (Dist.  Att'y,)  for  the  people,  contended 
that  the  court  of  Over  and  Terminer  in  which  the  prisoner  had 
been  convicted  was  a  court  of  general  jurisdiction,  and  that  its 
judgments  could  not  be  impeached, 


KINGS,  OCTOBER,   1354. 


The  People  v  Cavanagh. 


After  taking  time  for  consideration,  the  following  opinion 
was  delivered: 

DEAN,  J.  —  The  prisoner  in  this  case  is  brought  before  me 
on  a  writ  of  habeas  corpus  issued  to  inquire  into  the  cause  of 
his  detention. 

The  sheriff  has  made  a  return  to  the  writ  stating  that  he 
holds  him  by  virtue  of  the  following  commitment: 

At  a  court  of  Oyer  and  Terminer  holden  in  and  for  the 
county  of  Kings,  in  the  court  house,  in  the  city  of  Brooklyn, 
on  the  12th  day  of  September,  in  the  year  of  our  Lord,  1854 — 
Present,  the  Honorable  Wm.  Rockwell,  Justice,  presiding; 
Henry  A.  Moore,  County  Judge,  Nicholas  Stillwell  and  Sam'I 
Stryker,  Justices  of  the  Peace. 

The  people  of  the  state  of  New  York  v.  John  Cavanagh, 
convicted  of  misdemeanor. 

Whereupon,  it  is  ordered  and  judged  by  the  court,  that  the 
said  John  Cavanagh,  for  the  misdemeanor  aforesaid,  whereof 
he  is  convicted,  be  imprisoned  in  the  common  jail  of  Kings 
county,  for  the  term  of  thirty  days,  and  pay  a  fine  of  $250; 
and  in  default  of  payment  of  said  fine,  be  imprisoned  for  a  fur- 
ther term,  not  exceeding  six  months. 

A  true  extract  from  the  minutes. 

C.  A.  DENIKE,  Clerk. 

The  prisoner's  counsel  says  the  return  itself  does  not  uhow  a 
sufficient  cause  for  detention,  in  this,  that  the  offence  for  which 
he  is  committed  does  not  appear  in  this  commitmei  t,  and 
alleges  by  way  of  traverse  that  in  Kings  county  a  special  stat- 
ute exists,  which  directs  courts  sentencing  prisoners  to  impri- 
sonment for  thirty  days  or  more  to  sentence  them  to  imprison- 
ment in  the  penitentiary. 

The  statute  is  as  follows: 

Chap.  110. — Laws  of  New  York.  —  An  act  relating  to  the 
penitentiary  in  the  county  of  Kings.     Passed  April  5,  1853 
three-fifths  being  present. 


590 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Cavanagh. 


The  people  of  the  state  of  New  York  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Sec.  1.  Whenever  the  penitentiary  in  the  county  of  Kings 
shall  be  ready  for  the  confinement  of  prisoners  therein,  the 
board  of  supervisors  of  said  county  shall  file  a  certificate 
thereof  in  the  office  of  the  clerk  of  said  county,  and  also  pub- 
lish a  notice  of  the  same  three  weeks  successively  in  one  or 
more  newspapers  published  in  said  county.  ^ 

Sec.  2.  After  the  filing  of  said  certificate  and  the  publication 
of  said  notice,  it  shall  be  the  duty  of  all  magistrates  and  courts 
in  said  county  to  sentence  all  persons,  who  on  conviction  are 
liable,  (except  in  capital  cases,)  to  imprisonment  for  a  period 
of  not  less  than  30  days  to  confinement  in  said  penitentiary, 
instead  of  the  county  jail. 

The  necessary  facts  were  proved  to  show  that  the  prelimina- 
ries required  had  been  taken  by  the  board  of  supervisors,  viz., 
the  order,  its  filing  and  the  publication  in  one  or  more  papers 
for  the  period  of  three  weeks.  The  district  attorney  was  noti- 
fied of  the  time  of  the  return  of  the  writ  and  appeared  in 
behalf  of  the  people. 

The  first  question  that  arises  is  whether  the  commitment 
whereon  the  prisoner  is  held  is  "  the  final  judgment  or  decree 
of  any  competent  court  of  civil  or  criminal  jurisdiction."  If 
it  is,  then  I  have  no  authority  to  discharge  him.  The  statute 
2  R.  S.  783,  §  5,  provides  that  whenever  a  judgment  upon  a 
conviction  shall  be  rendered  in  any  court  it  shall  be  the  duty 
of  the  clerk  thereof  to  enter  such  judgment  fully  in  his  minutes, 
stating  briefly  the  offence  for  which  such  conviction  shall  have 
been  had.  In  this  case  it  was  proved  that  the  commitment  on 
which  the  prisoner  was  held,  was  a  transcript  of  the  minutes 
of  the  clerk —  which  was  the  only  judgment  that  exists. 

Is  this  a  judgment?  No  offence  is  stated.  It  is  true,  that  it 
says  "  for  misdemeanor."  This  embraces  a  numerous  class  of 
cases,  but  is  not  the  name  or  description  of  any  offence.  We 
can  not  from  this  determine  for  what  he  has  been  tried  or  con- 
victed, nor  could  this  judgment,  without  proof,  be  a  bar  to 
another  trial  for  any  specific  misdemeanor.  The  statute  which 


KINGS,  OCTOBER,  1854.  59 J 

The  People  v.  Cavanagh. 

requires  that  the  judgment  should  state  the  offence,  means  more 
than  that  it  should  state  tc  which  class  of  offences  —  felonies 
or  misdemeanors — it  belongs,  and  a  minute  like  the  one  proved 
in  the  case  is  not  a  judgment  within  its  intent  or  letter.  I  see 
no  objection,  therefore,  to  proceeding  with  the  examination 
into  the  cause  of  the  prisoner's  detention. 

He  is  held,  the  return  states,  on  a  sentence  of  30  days'  im- 
prisonment and  to  pay  a  fine  of  $250,  or  in  default  thereof  an 
imprisonment  of  six  months  for  a  misdemeanor.  Now,  there 
are  some  misdemeanors  for  which  a  person  convicted  can  not 
be  imprisoned  at  all,  and  others  in  which  the  fine  can  not 
amount  to  the  sum  here  named.  Can  anyone  from  the  process 
or  the  judgment  on  which  the  sheriff  holds  the  prisoner  deter- 
mine whether  this  is  a  legal  sentence?  Opening  sealed  letters 
is  a  misdemeanor  punishable  by  a  fine  not  exceeding  $100  and 
imprisonment  not  exceeding  one  month. 

Assemblages  of  three  or  more  persons  in  public  houses, 
disguised,  is  a  misdemeanor  punishable  by  imprisonment  alone 
Winning  or  losing  at  play  more  than  $25  within  24  hours  is 
a  misdemeanor  punishable  by  fine  alone. 

There  are  so  many  cases  of  this  kind,  that  I  can  not  now  enu- 
merate them.  These  will  furnish  an  example  to  show  that  from 
the  mere  statement  that  the  prisoner  has  been  convicted  of  a 
misdemeanor,  it  does  not  appear  that  the  sentence  in  this  case 
was  one  which  the  court  was  authorized  to  pronounce. 

There  are  felonies  for  which  a  person  on  conviction  may  be 
imprisoned  in  the  county  jail  or  state  prison,  and  other  felonies 
on  which  he  may  be  sentenced  to  be  executed.  Now,  surely  it 
would  not  be  enough  in  entering  up  a  judgment  for  a  capital 
offence  to  say  that  the  prisoner  was  convicted  of  a  felony. 
The  statute,  when  it  says  the  judgment  shall  state  the  offence, 
means  that  it  shall  specify  more  than  the  class  of  the  offence, 
namely,  a  felony  or  a  misdemeanor,  but  that  it  shall  designate 
the  particular  offence  for  which  he  has  been  indicted  and  tried, 
whether  it  be  for  gaming,  larceny,  or  murder.  I  conclude, 
therefore,  that  this  is  not  a  judgment. 

But  even  if  it  were  the  final  judgment  of  a  court  of  compe- 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Cavanagh. 


tent  jurisdiction,  there  is  no  reason  why  the  prisoner  should 
not  be  lischarged,  if  anything  appears  on  the  face  of  the  pro- 
cess which  shows  it  invalid.  A  judge  can  not  on  habeas  corpus 
go  back  and  inquire  into  the  merits  of  the  case,  nor  whether 
errors  were  committed  on  the  trial;  but  if  the  process  is  set 
out  by  which  the  prisoner  is  confined,  then,  in  the  language  of 
Judge  Bronson,  (5  Hill,  167,  People  v.  Cassels,)  "  the  officer 
may  inquire  whether  in  truth  there  be  any  process,  and  whe- 
ther it  appears  on  its  face  to  be  valid.  He  may  also  inquire 
whether  any  cause  has  arisen  since  the  commitment  for  putting 
an  end  to  the  imprisonment,  as  a  pardon,  reversal  of  the  judg- 
ment, payment  of  the  fine,  and  the  like." 

The  'e  are  many  cases  which  can  not  be  reached  by  writ  of 
error,  md  when  the  only  means  of  obtaining  a  release  from  an 
illegal  imprisonment  is  either  by  a  motion  to  the  court,  or  by  a 
resort  to  this  writ,  which  is  so  highly  favored  by  law  that  it  is 
made  :i  penal  offence  for  an  officer  to  refuse  it. 

I  th>nk  the  imprisonment  is  illegal  for  another  reason.  The 
penitentiary  of  Kings  county  is  the  place  provided  by  law  for 
the  cotifinement  of  persons  sentenced  for  thirty  days,  and  I  see 
no.gnund  for  leaving  it  discretionary  with  the  court  to  elect 
in  which  place  the  confinement  shall  be,  the  jail  or  penitenti- 
ary. 

Of  the  merits  of  the  conviction  I  know  nothing,  and  have 
no  concern.  I  am  only  to  pass  upon  the  legality  of  the  impri- 
sonment, and  being  satisfied  that  it  is  illegal  my  duty  is  plain. 
The  prisoner  must  be  discharged.  Whether  the  Oyer  and 
Terminer,  on  entering  a  judgment  on  the  conviction,  may  again 
arrest  and  sentence  him,  need  not  now  be  determined. 

Prisoner  discharged. 


KINGS,  NOVEMBER,  1834.  593 


SUPREME  COURT.     At  Chambers,  Brooklyn,  November  2,  1854. 
Before  Dean,  Justice. 

THE  PEOPLE  vs.  MALONEY  alias  McCLUSKEY. 

A.t  common  law  a  dog  was  not  the  subject  of  larceny;  but  it  seems  the  law  in 
this  respect  has  been  changed  by  the  Revised  Statutes,  which  recognize  dogs 
as  property,  by  subjecting  them  to  taxation,  and  define  larceny  so  as  to  cover 
the  taking  and  carrying  away  of  all  kinds  of  property,  except  the  freehold 
and  things  which  are  parcel  of  it. 

Where  a  person  was  indicted  for  grand  larceny,  in  stealing  a  Newfoundland 
dog  of  the  value  of  $100.  the  property  of  R.  T.,  and  arrested  on  a  warrant 
issued  on  such  indictment,  after  a  hearing  on  habeas  corpus  before  a  justice 
of  the  Supreme  Court  at  chambers,  his  discharge  was  refused. 

The  prisoner  was  brought  up  on  a  writ  of  habeas  corpus.  It 
appeared  that  he  had  been  indicted  and  arrested  for  grand  lar- 
ceny in  stealing  a  dog.  He  claimed  to  be  discharged  on  the 
ground  that  a  dog  was  not  the  subject  of  larceny. 

D.  H.  Topping,  for  the  prisoner. 

R.  C.  Underhill,  (Dist.  Att'y,)  for  the  people. 

After  advisement,  the  following  opinion  was  delivered: 

DEAN,  J. — The  prisoner  was  indicted  at  the  Kings  county 
sessions  for  grand  larceny,  in  stealing  a  Newfoundland  dog  of 
the  value  of  $100,  the  property  of  Richard  Todd.  He  was 
then  arrested  on  a  warrant  issued  on  the  indictment,  and  in  de- 
fault of  bail  for  his  appearance  to  answer  the  indictment,  was 
committed.  He  is  now  brought  before  me  on  habeas  corpus, 
and  his  discharge  on  his  own  recognizance  asked  for,  on  the 
ground  that  a  dog  is  not  property  whereof  a  larceny  can  be 
committed. 

The  case  has  been  argued  at  length  by  the  prisoner's  coun- 
sel on  one  side,  and  the  district  attorney  on  the  other;  and 
strange  as  it  may  appear,  when  the  number  of  dogs  is  con- 
sidered, and  the  value  which  for  various  purposes  is  put  upon 
them,  the  question  seems  never  to  have  been  decided  in  this 
state. 

VOL.  I.  75 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v.  Maloney. 


It  is  impossible  for  me  at  the  circuit,  constantly  engaged  in 
the  trial  of  causes,  to  examine  the  subject  at  length,  but  I  have 
given  to  it  that  attention  which  my  time  would  permit,  and 
will  proceed  to  state  the  conclusion  to  which  I  have  arrived, 
and  briefly  the  reasons  which  have  led  to  it. 

At  common  law,  a  dog  was  not  the  subject  of  larceny.  A 
reference  to  Roscoe's  Criminal  Evidence,  Jlrchbold's  Criminal 
Pleadings,  and  Blackstone' s  Commentaries,  renders  this  propo- 
sition indisputable.  The  rule  is  there  stated  as  follows:  "  As 
to  those  animals  which  do  not  serve  for  food,  and  which  there- 
fore the  law  holds  to  have  no  intrinsic  value,  as  dogs  of  all 
sorts,  and  other  animals  kept  for  whim  or  pleasure,  though  a 
man  may  have  a  bare  property  therein,  yet  they  are  not  of  such 
estimation  as  that  the  crime  of  stealing  them  amounts  to  a 
larceny." 

By  this  it  appears  that  not  only  was  it  no  crime  to  steal  a 
dog,  but  that  a  person  might  secretly  take  and  carry  away  a 
whole  menagerie  and  be  entirely  guiltless.  The  reason  of  the 
rule  was,  that  these  animals  were  of  so  base  a  nature  that  it 
would  not  do  to  make  the  taking  of  them  a  felony;  at  that  time 
larceny  was  punishable  with  death,  and  it  was  undoubtedly  to 
get  clear  of  sacrificing  a  man  for  a  dog  or  a  bear,  that  the  de- 
cision was  made  and  followed  in  subsequent  cases.  The  reason 
of  the  rule  no  longer  exists,  and  on  that  ground  alone  the  rule 
might  cease  to  be  operative.  But  the  common  law  has  been 
adopted  in  this  state,  and  I  do  not  feel  disposed  by  judicial 
legislation  to  abrogate  any  part  of  it.  If  we  had  no  statute 
which  was  in  conflict  with  it,  I  should  feel  bound  by  the  ancient 
doctrine  which  I  have  cited.  But  I  think  the  Revised  Statutes 
are  inconsistent  with  the  common  law  rule.  By  them,  dogs 
are  so  far  regarded  as  property  as  to  be,  in  certain  cases,  the 
subject  of  taxation.  The  owner  is  made  liable  for  the  acts  of  his 
dog;  thus  recognizing  that  a  dog  has  an  owner,  and  consequently 
that  the  thing  owned  is  property.  For  every  civil  purpose,  not 
only  by  statute,  but  by  the  decisions  of  our  courts,  a  dog  is 
regarded  as  property.  The  owner  may  bring  an  action  for  any 
injury  inflicted  upon  his  'lo^.  If  taken  away  he  may  bring 


ERIE,  APRIL,  1825. 


The  People  v.  Thayers. 


replevin  or  trover.  But  the  statute  has  defined  grand  larceny, 
which  is  the  crime  whereof  the  prisoner  is  indicted.  (2  R.  S. 
679,  §63.)  "Every  person  who  shall  be  convicted  of  the  felo- 
nious taking  and  carrying  away  the  personal  property  of  another, 
of  the  value  of  more  than  $25,  shall  be  adjudged  guilty  of 
grand  larceny."  The  same  chapter,  page  702,  §  33,  defines  the 
term  "  personal  property,"  as  meaning  "  goods,  chattels,  effects," 
&c.  There  is  no  term  broader  than  chattel.  Bouvier,  in  his  Law 
Dictionary,  says  a  "  chattel  is  a  term  including  all  kinds  of  pro- 
perty, except  the  freehold  and  things  which  are  parcel  of  it." 

If  these  statutes,  therefore,  do  not  clearly  abrogate  the  com- 
mon lav  rule,  they  raise  so  grave  a  question  as  to  render  it 
improper  for  me  on  habeas  corpus  to  discharge  the  prisoner. 
He  must  give  bail  or  be  remanded,  and  his  counsel  can  present 
the  question  by  demurrer;  by  moving  in  arrest  of  judgment 
or  otherwise,  so  as  to  bring  the  matter  up  at  general  term,  and 
if  necessary  to  the  court  of  appeals. 

The  bail  was  fixed  at  $250,  which  the  prisoner  obtained,  and 
was  discharged  from  custody. 


ERIE  OVER  AND  TERMINER.  April,  1825.  Before  Walworth, 
Circuit  Judge,  and  Walden,  Russell,  Camp  and  Douglass, 
county  Judges. 

THE  PEOPLE  vs.  ISAAC  THAYER  AND  ISRAEL  THAYER,  Jr. 

Where  two  or  more  persons,  jointly  indicted  for  murder,  are  tried  together, 
only  twenty  peremptory  challenges  can  be  allowed  to  all  the  defendants. 

On  a  trial  for  murder,  it  appeared  that  the  father  of  the  defendants  had  been 
arrested  and  examined  before  a  magistrate  on  a  complaint  against  him  for 
the  same  murder,  and  that  on  such  examination  one  of  the  defendants,  who 
was  also  at  the  same  time  under  arrest  for  the  murder,  came  forward  as  a 
volunteer  witness  and  testified  on  such  examination ;  Held,  that  his  state- 
ments, made  under  oath,  on  such  examination,  were  admissible  in  evidence 
against  him. 

On  a  trial  for  murder,  it  is  competent  for  the  public  prosecutor  to  prove  what  the 
•lefendant  testified  to,  before  a  coroner's  jury,  at  an  inquest  held  on 


596  DECISIONS  IX  CRIMINAL,  CASES. 

The  People  v,  Thayers. 

of  the  deceased,  though  it  appears  the  defendant  with  other  persons  was  at 
the  time  under  arrest  for  the  alleged  murder,  the  inquiry  on  such  inquest  no' 
having  been  as  to  the  guilt  of  the  defendant,  but  being  general,  to  ascertain, 
if  possible,  who  was  the  murderer,  (a) 

In  criminal  trials,  the  jury  have  a  right  to  decide  both  as  to  the  law  and  facts 
of  the  case.  (6)  The  court  is  bound  to  decide  the  questions  of  law  and  to 
state  them  to  the  jury;  but  the  jury  have  a  right  to  disregard  the  decision  of 
the  court  upon  questions  of  law,  especially  in  favor  of  life,  if  they  are  fully 
satisfied  that  such  decision  is  wrong.  The  decision  of  questions  of  fact 
belongs  exclusively  to  the  jury,  though  it  is  the  right,  and  sometimes  the 
duty  of  the  court  to  comment  upon  the  evidence,  for  the  purpose  of  present- 
ing such  questions  properly  to  the  consideration  of  the  jury. 

The  mode  of  reasoning  and  drawing  conclusions  from  facts  and  circumstances 
is  the  same,  whether  the  case  under  consideration  is  a  mere  contest  respect- 
ing the  rights  of  property,  or  one  involving  the  life  of  an  individual;  except 
that,  in  criminal  cases,  the  accused  must  be  presumed  to  be  innocent,  until 
the  contrary  is  clearly  established  by  proof  which  leaves  no  reasonable  doubt 
on  the  mind. 

Sentence  of  death  pronounced  by  WALWORTH,  circuit  judge,  upon  Nelson 
Thayer,  Israel  Thayer,  Jr.,  and  Isaac  Thayer,  at  the  Erie  Oyer  and  Termi- 
ner,  in  April,  1825. 

These  defendants,  Isaac  Thayer  and  Israel  Thayer,  Jr.,  were 
jointly  indicted  for  the  murder  of  John  Love;  and  they  con- 
sented to  be  tried  together.  The  counsel  for  the  prisoner, 
having  challenged  twenty  jurors  peremptorily,  insisted  upon 
the  right  to  twenty  more  peremptory  challenges;  claiming  that 
as  there  were  two  more  persons  on  trial,  each  was  entitled  to 
the  number  of  challenges  allowed  to  a  person  indicted  for  a 
capital  felony. 

The  court  decided  that  where  two  or  more  persons  were 
tried  together,  only  twenty  peremptory  challenges  could  be 
allowed  to  all  the  persons  so  tried. 

The  father  of  the  accused  had  been  arrested  and  examined 
before  a  magistrate  upon  a  complaint  against  him  for  the  same 
murder.  And  in  the  course  of  the  present  trial  the  public  pro- 
secutor proposed  to  prove  what  Isaac  Thayer,  one  of  the 

persons  now  on  trial,  testified  to  on  that  examination.     The 
• 

(a)  Vide  Hendrickson  v.  The  People,  p.  406. 

(b)  This  doctrine  is  controverted  in  the  case  of  The  People  v.  Finnegan,  p. 
147,  and  The  People  v.  Croziei,  p.  453. 


ERIE,  APRIL,   1825. 


The  People  v.  Thayers. 


counsel  for  the  defence  objected  to  said  evidence,  on  the  ground 
that  Isaac  Thayer  was  at  the  same  time  under  arrest  himself 
for  the  same  murder.  But  as  it  appeared  from  the  testimony 
of  the  magistrate  that  Isaac  Thayer  came  forward  as  a  volun- 
teer witness  upon  the  examination  of  his  father,  and  was  not 
coerced  to  testify,  the  court  held  that  he  could  not  now 
object  to  the  admission,  as  evidence  against  himself,  of  what 
he  stated  under  oath  upon  that  examination. 

Israel  Thayer,  Jr.,  the  other  prisoner  on  trial,  had  been 
examined  before  the  coroner  when  he  and  his  two  brothers, 
and  their  father,  were  all  under  arrest  for  the  alleged  murder 
The  public  prosecutor  proposed  to  prove,  by  the  coroner,  what 
this  defendant  swore  to  on  that  examination.  This  testimony 
being  objected  to,  the  court  decided  that  the  examinati9n  of 
the  present  defendant  before  the  coroner's  inquest,  not  being  as 
to  his  own  guilt,  but  merely  to  ascertain  if  possible  who  the 
murderer  was,  if  he  could  not  answer  the  questions  propounded 
to  him  without  testifying  to  facts  which,  in  connection  with 
other  circumstances,  might  tend  to  criminate  himself,  he  should 
have  claimed  his  exemption  at  that  time.  And  that  having 
answered  the  questions  propounded  to  him  without  objection, 
the  prosecutor  had  a  legal  right  to  give  what  this  defendant 
then  testified  to  in  evidence  against  him  on  this  trial.  The 
substance  of  the  facts  in  this  case,  as  made  out  by  the  circum- 
stantial evidence  upon  the  trial,  and  as  they  were  afterwards 
admitted  by  the  murderers  themselves,  are  referred  to  in  the 
sentence  pronounced  by  the  court. 

Walworth,  circuit  judge,  in  his  charge  to  the  jury  remarked 
that  the  prisoners  were  charged  with  a  very  aggravated  mur- 
der. If  guilty,  and  the  jury  were  satisfied  of  that  fact,  from  the 
evidence  in  the  case,  it  was  a  solemn  and  imperious  duty 
imposed  upon  such  jury,  by  the  laws  of  their  country,  to  pro- 
nounce a  verdict  of  condemnation.  On  the  contrary,  if  the 
jury  had  any  reasonable  doubt  as  to  the  guilt  of  the  accused  it 
was  not  only  their  right  but  also  their  duty  to  give  a  verdict 
of  acquittal. 

He  said  the  reports  respecting  the  circumstances  attending 


593  DECISIONS  IX  CRIMINAL  CASES. 

The  People  v.  Thayers. 

the  murder  had  been  so  extensive,  that  it  was  impossible  thai 
the  jurors  should  not  have  heard  many  things  on  the  subject 
before  they  were  sworn  to  try  the  accused.  But  it  was  their 
duly  to  disregard  every  thing  they  had  heard  on  the  subject, 
either  for  or  against  the  accused,  except  what  had  been  given 
in  evidence  upon  this  trial.  He  told  the  jury  that,  in  criminal 
trials,  they  had  a  right  to  decide  both  as  to  the  law  and  the 
facts  of  the  case.  That  the  court  was  bound,  by  the  oaths  of 
office  of  its  judges,  honestly  and  impartially  to  decide  the  ques- 
tions of  law  arising  in  the  case  and  state  them  to  the  jury. 
But  the  jury  had  a  right  to  disregard  the  decision  of  the  court, 
upon  questions  of  law,  especially  in  favor  of  life,  if  they  were 
fully  satisfied  that  such  decision  was  wrong.  And  that  the 
decision  upon  the  questions  of  fact  in  the  case  belonged  exclu- 
sively to  the  jury;  although  it  was  the  right,  and  sometimes 
the  duty  of  the  court,  to  comment  upon  the  evidence  for  the 
purpose  of  presenting  the  questions  of  fact  arising  in  the  case, 
and  material  to  a  correct  decision  thereof,  properly  to  the  con- 
sideration of  the  jury. 

He  said  the  general  principles  of  evidence  were  the  same  in 
all  cases.  That  they  were  those  principles  of  correct  reason 
from  which  an  enlightened  intellect  might  be  convinced  of  the 
existence  of  a  fact  which  was  to  be  established,  or  of  the  non- 
existence  of  a  fact  which  was  required  to  be  disproved.  That 
the  mode  of  reasoning  and  drawing  conclusions  from  facts  and 
circumstances  must  therefore  be  the  same,  whether  the  case 
under  consideration  by  the  jury  was  a  mere  contest  respe  jting  the 
rights  of  property,  or  one  involving  the  life  of  an  individual; 
except  that,  in  criminal  cases,  the  accused  must  be  presumed 
to  be  innocent,  until  the  contrary  was  clearly  established  by 
proof  which  left  no  reasonable  doubt  in  the  minds  of  the  jurors. 

His  honor  then  analyzed  and  examined  the  testimony  in  the 
case  at  length,  and  presented  the  questions  of  fact  necessary  to 
a  correct  decision  of  the  case  to  the  consideration  of  the  jury. 
And  he  then  submitted  the  question,  as  to  the  guilt  of  the 
accused,  to  the  jury,  as  one  which  it  belonged  exclusively  to 
them  to  decide 


ERIE,  APRIL.   1823. 


The  People  v.  Thayers. 


The  jury,  after  an  absence  of  about  one  hour?  returned  a 
verdict  of  guilty  against  both  of  the  prisoners  on  trial. 

H.  R  Potter,  (Dist.  Att'y),  Sheldon  Smith  and  Henry 
Brown,  for  the  prosecution. 

P.  C.  Love,  E.  Griffin  and  E.  B.  Mien,  for  the  defendants. 

On  the  next  day  Nelson  Thayer,  the  other  brother,  was, 
tried  upon  a  separate  indictment  for  the  same  murder,  and  was 
also  convicted. 

WAL WORTH,  Circuit  Judge,  thereupon  pronounced  the  follow 
ing  sentence  upon  the  prisoners: 

Nelson  Thayer,  Israel  Thayer,  Jr.,  and  Isaac  Thayer:  —  You 
have  been  indicted  by  the  grand  jury  of  this  county,  for  the 
murder  of  John  Love,  at  the  town  of  Boston,  on  the  loth  of 
December  last.  You  have  respectively  had  fair  and  impartial 
trials,  in  which  you  have  been  aided  by  faithful  and  intelligent 
counsel.  After  a  patient  and  deliberate  investigation  of  your 
several  cases  by  petit  juries,  they  have  been  constrained  and 
compelled,  by  their  consciences  and  their  oaths,  to  pronounce 
each  and  all  of  you  guilty  of  a  most  foul  and  aggravated  mur- 
der. Have  you,  or  either  of  you,  anything  to  say  why  the 
sentence  of  the  law  should  not  be  pronounced  against  you? 
[The  prisoners  making  no  response,  his  honor  proceeded  as 
follows:] 

The  feelings  and  emotions  with  which  I  enter  upon  the  dis- 
charge of  the  solemn  and  important  duty  which  devolves  upon 
the  court,  and  which  I  am  now  about  to  perform,  are  too  pain- 
ful to  be  expressed.  To  pronounce  the  dreadful  sentence 
which  is  to  cut  a  fellow  mortal  off  from  society,  to  deprive  him 
of  existence,  and  to  sent/  him  to  the  bar  of  his  Creator  and  his 
God,  where  his  destiny  must  be  fixed  for  eternity,  is  at  all 
times,  and  under  any  circumstance,  most  painful  to  the  court. 
But  to  be  compelled,  at  one  and  the  same  time,  to  consign  to 


600 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  t>.  Thayers. 


the  gallows  three  young  men,  who  have  just  arrived  at  man- 
hood, standing  in  the  relation  to  each  other  of  brothers,  and 
connected  with  others  in  the  tender  relations  of  children,  bro- 
thers, husbands  and  fathers,  presses  upon  my  feelings  with  a 
weight  which  I  can  neither  resist  nor  express. 

If,  in  the  discharge  of  this  most  painful  duty  which  can  ever 
devolve  on  any  court,  I  should,  in  portraying  the  horrid  cir- 
cumstances of  this  case,  make  use  of  strong  language  to  express 
the  enormity  of  your  guilt,  and  the  deep  depravity  which-it  indi- 
cates, I  wish  you  to  rest  assured  it  is  not  with  any  intention  of 
wounding  the  feelings  of  your  relatives,  nor  for  the  purpose  of 
adding  one  pang  to  your  own  afflictions  which  the  righteous 
hand  of  an  offended  God  is  pressing  so  heavily  upon  you.  But 
it  will  be  for  the  purpose,  if  possible,  of  awakening  you  to  a 
proper  sense  of  your  awful  situations,  and  to  prepare  you  to 
meet  the  certain  and  ignominious  deaths  which  shortly  await 
you.  It  is  to  endeavor,  if  possible,  to  soften  your  hearts  and 
to  produce  a  reformation  in  your  feelings;  that,  by  contrition 
and  repentance,  you  may  be  enabled  to  shun  a  punishment 
infinitely  more  dreadful  than  any  that  can  be  inflicted  by 
human  laws  —  the  eternal  and  irretrievable  ruin  of  your  guilty 
souls. 

From  the  testimony  which  was  given  on  the  trials  of  your 
several  cases,  there  is  no  room  to  doubt  the  certainty  of  your 
guilt,  or  the  aggravated  circumstances  attending  the  perpetra- 
tion of  the  bloody  deed.  The  man  you  murdered  was  your 
companion  and  your  friend.  He  had  loaned  you  money  to 
relieve  your  necessities  and  to  support  some  of  your  families. 
He  was  the  lenient  creditor,  renewing  and  exchanging  his 
judgments  and  his  executions,  from  time  to  time,  to  prevent 
the  sacrifice  of  your  property.  He  was  the  lodger  of  your 
father,  and  was  frequently  enjoying  the  hospitalities  of  your 
own  roofs.  In  the  unsuspecting  hour  of  private  confidence, 
you  decoyed  him  to  the  retired  dwelling  of  Israel  Thayer,  Jr.j 
and  there,  while  he  was  enj.oying  the  hospitality  of  the  social 
fireside,  you  stole  upon  him  unperceived  —  you  aimed  the 
deadly  musket  at  his  head,  and  with  the  fatal  axe  you  mangled 


ERIE,  APRIL,   1825. 


The  People  ».  Thayers. 


and  murdered  your  victim  —  mingling  his  blood  with  that  of 
your  butchered  swine.  But  your  guilt  and  depravity  did  no* 
stop  here.  Scarcely  had  you  committed  his  lifeless  corpse  to 
its  shallow  grave,  before  you  began  to  collect  and  to  riot 
upon  the  spoils  of  his  property.  To  the  crime  of  murder,  you 
added  those  of  theft,  fraud  and  forgery;  and  repeatedly  impre- 
cated the  vengeance  of  Heaven  upon  your  perjured  souls. 

The  punishment  of  death  has  been  pronounced  against  the 
crime  of  murder,  not  only  by  the  laws  of  all  civilized  nations, 
but  also  by  that  law  which  was  written  by  the  pen  of  inspira- 
tion under  the  dictation  of  the  unerring  wisdom  of  the  Most 
High.  And  as  God  himself  has  prescribed  the  righteous 
penalty  for  this  offence,  so  there  is  strong  reason  to  believe 
that  very  few  murders  are  committed  which  are  not  ultimately 
liscovered,  and  the  wicked  perpetrators  thereof  brought  to 
merited  punishment. 

Wretched  and  deluded  men!  In  vain  was  the  foul  deed  per- 
petrated under  cover  of  the  darkness  of  night;  in  vain  was  the 
mangled  body  of  your  murdered  companion  committed  to  the 
earth  and  the  lonely  grave  concealed  by  rubbish;  in  vain  was 
the  little  boy  sent  home  to  his  mother,  and  the  unsuspecting 
wife  removed  from  her  house,  that  no  human  eye  should  be 
near,  to  witness  the  foul  and  unnatural  murder;  in  vain  did 
you  expect  the  snows  of  winter  to  conceal  the  grave  until  the 
body  of  your  victim  could  be  no  longer  known  and  recognized. 
You  forgot  that  the  eye  of  your  God  was  fixed  upon  you  —  the 
eye  of  that  God  who  suffers  not  even  a  sparrow  to  fall  without 
his  notice.  You  forgot  that  you  were  in  the  presence  of  Him 
to  whom  the  light  of  day  and  the  da/kness  of  midnight  are 
the  same;  that  He  witnessed  all  your  movements;  that  He 
could  withhold  the  accustomed  snows  from  falling  on  the  earth, 
or  His  breath  could  melt  them  when  fallen,  leaving  the  grave 
uncovered,  thus  exposing  you  to  detection  and  condemnation. 
His  vengeance  has  at  length  overtaken  you.  The  sword  of 
human  justice  trembles  over  you  and  is  about  to  fall  upon  your 
guilty  heads.  You  are  about  to  take  your  final  leave  of  this 
world,  and  to  enter  upon  the  untried  retributions  of  a  never 

VOL.  I.  76 


602  DECISIONS  IX  CRLMLNAL  CASES. 

The  People  v.  Thayers. 

ending  eternity.  And  I  beg  of  you  not  to  delude  yourselves 
with  the  vain  hopes  of  pardon,  which  never  can  be  realized. 
Your  destiny  for  this  world  is  fixed,  and  your  fate  is  inevitable. 
Let  me  therefore  entreat  you,  individually  and  collectively,  by 
every  motive  temporal  and  eternal,  to  reflect  upon  your  present 
situation,  and  the  certain  death  that  shortly  awaits  you.  There 
is  but  one  who  can  pardon  your  offences;  there  is  a  Saviour 
whose  blood  is  sufficient  to  wash  from  your  souls  the  guilty 
stains  even  of  a  thousand  murders.  Let  me  therefore  entreat 
you  to  fly  to  him  for  that  mercy  and  that  pardon  which  you 
must  not  expect  from  mortals. 

When  you  have  returned  to  the  solitude  of  your  prison, 
where  you  will  be  permitted  to  remain  for  a  few  short  weeks, 
let  me  entreat  you,  by  all  that  is  still  dear  to  you  in  time  —  by 
all  that  is  dreadful  in  the  retributions  of  eternity  —  that  you 
seriously  reflect  upon  your  present  situation  and  upon  the  con- 
duct of  your  past  lives.  Bring  to  your  minds  all  the  aggra- 
vated horrors  of  that  dreadful  night,  when  the  soul  of  the  mur- 
dered Love  was  sent  unprepared  into  the  presence  of  its  God, 
where  you  must  shortly  meet  it  as  an  accusing  spirit  against 
you.  Bring  to  your  recollections  the  mortal  struggles  and 
dying  groans  of  your  murdered  friend.  Recollect  the  horror 
that  seized  you  while  you  dragged  his  murdered  remains  to 
the  place  of  concealment.  Think  of  the  situation  of  your  aged 
father  to  whom  you  a^e  indebted  for  your  existence.  Think  of 
the  grief  of  your  distracted  and  disconsolate  mother,  who  has 
nursed  you  in  the  lap  of  affection  and  watched  over  the  tender 
years  of  your  infancy;  who  must  now  go  down  to  her  grave 
sorrowing  over  the  ruins,  of  her  family.  Think  of  the  dreadful 
agonies,  of  the  unnatural  and  desolate  widowhoods,  to  which 
you  have  reduced  the  unfortunate  partners  of  your  beds  and 
your  bosoms.  Think  upon  your  poor  orphan  children,  on 
whom  you  have  entailed  everlasting  disgrace  and  infamy;  and 
who  are  now  to  be  left,  fatherless,  and  unprotected,  to  the 
mercy  of  the  world.  And  when,  by  such  reflections  as  these, 
your  hard  and  obdurate  hearts  shall  become  softened,  let  me 
again  intreat  you,  before  your  blood-stained  hands  are  raised  in 


FRANKLIN,  JULY,  1825. 


The  People  v.  Videto. 


unavailing  supplication  before  the  judgment  seat  of  Christ, 
that  you  fly  for  mercy  to  the  arms  of  the  Saviour  and  endeavor 
to  seize  upon  the  salvation  of  his  cross. 

Listen  now  to  the  dreadful  sentence  of  the  law,  and  then 
farewell,  forever,  until  the  court,  and  you,  with  all  this  assem- 
bled audience,  shall  meet  together  in  the  general  resurrection. 

You,  and  each  of  you  are  to  be  taken  from  hence  to  the 
prison  from  which  you  came,  and  from  thence  to  the  place  of 
execution,  and  there,  on  the  seventeenth  day  of  June  next, 
between  the  hours  of  twelve  at  noon  and  six  o'clock  in  the 
afternoon,  you  are  to  be  hanged  by  your  necks  until  you  are 
dead. 

And  may  that  God  whose  laws  you  have  broken,  and  before 
whose  dread  tribunal  you  must  then  appear,  have  mercy  on 
your  souls. 


FRANKLIN  OYER  AND  TERMINER.  July,  1825.  Before  Walworth, 
Circuit  Judge,  and  Clark,  Bates,  Collins  and  Pierce,  county 
Judges. 

THE  PEOPLE  vs.  STEPHEN  VIDETO. 

In  criminal  cases,  the  jury  are  judges  both  of  the  law  and  facts.  They  have  a 
right  to  disregard  the  opinion  of  the  court  in  a  criminal  case,  even  upoa  a 
question  of  law,  if  they  are  fully  satisfied  that  such  opinion  is  wrong,  (a) 

Presumptive  or  circumstantial  evidence  is  admissible  both  in  civil  and  criminal 
cases,  and  in  prosecutions  for  some  of  the  worst  species  of  crimes,  is  often 
the  most  satisfactory  and  convincing  that  can  bo  produced.  The  reasons  for 
this  opinion  stated  in  a  comparison  between  positive  and  circumstantial  evi- 
dence. 

The  treatise  entitled  "  The  theory  of  presumptive  proof,  or  an  inquiry  into  the 
nature  of  circumstantial  evidence,"  which  is  found  bound  up  with  the  first 
American  edition'  of  Philips'  Evidence,  disapproved  and  declared  to  be  in 
opposition  to  the  judicial  decisions  upon  that  subject;  and  the  eleven  cases 
published  in  the  appendix  of  that  work  for  the  purpose  of  supporting  that 
theory  by  illustration,  held  to  be  unauthenticateil  and  unreliable. 

(a)  This  is  in  accordance  with  the  opinion  expressed  in  the  last  case  by  the 
same  judge,  but  is  at  variance  with  the  law  as  laid  down  in  Th«  People  v. 
Finnegan,  p.  147,  and  The  People  v.  Crozier,  p.  453. 


604  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Videto. 

The  nature  of  presumptions  discussed;  and  violent  presumptions,  probable  pre- 
sumptions, and  light  or  rash  presumptions  described  and  illusi;  ated  by  exam- 
ples, and  directions  given  as  to  their  application,  and  as  to  the  weight  that 
should  be  severally  given  to  them. 

The  prisoner  was  tried  upon  an  indictment  for  the  murder  of 
Fanny  Mosely,  by  shooting  her,  in  February,  1825.  This  case 
depended  entirely  upon  circumstantial  evidence.  Very  few 
questions  of  law  arose  upon  the  trial,  and  it  is  only  necessary  to 
notice  that  part  of  the  charge  of  the  court  which  relates  to  the 
principles  which  are  to  govern  the  jury  in  deciding  a  case 
depending  upon  circumstantial  evidence. 

The  case  was  summed  up  to  the  jury,  upon  the  law  and  the 
facts  of  the  case,  by 

A.  Hascall,  (Dist.  Att'y,)  and  E.  C.  Gross,  for  the  people. 
W.  Swetland  and  J.  Lynde,  for  the  prisoner. 

By  the  Court,  WALWORTH,  J. — After  stating  to  the  jury  that 
in  criminal  cases  they  were  judges  both  of  the  law  and  the 
facts,  that  the  decision  of  the  questions  of  fact  belonged  ex- 
clusively to  them,  and  that  they  also  had  a  right  to  disregard 
the  opinion  of  the  court,  in  a  criminal  case,  even  upon  a  ques- 
tion of  law,  if  they  were  fully  satisfied  that  such  opinion  was 
wrong,  proceeded  as  follows: 

The  decision  of  this  case,  gentlemen  of  the  jury,  depends 
altogether  upon  what  is  called  presumptive  or  circumstantial 
evidence.  This  species  of  evidence  is  admissible,  both  in  civil 
and  in  criminal  cases,  but  more  frequently  in  the  latter,  because 
it  is  adopted  the  more  readily  in  proportion  to  the  difficulty  of 
establishing  facts  by  positive  testimony.  In  cases  of  murder 
and  other  crimes  of  the  higher  grades  which  are  usually  com- 
mitted in  secret,  it  is  frequently  the  only  evidence  which  can 
be  adduced  to  substantiate  the  fact  of  the  commission  of  the 
crime.  Philips,  in  his  excellent  treatise  on  the  law  of  evidence, 
says  that  in  prosecutions  for  some  of  the  worst  species  of 
crimes,  this  kind  of  evidence  will  often  be  the  most  satisfactory 


FRANKLIN    JULY, 


605 


The  People  v.  Videto. 


and  convincing  that  can  be  produced;  and  the  remarks  of  this 
elementary  writer  have  been  sanctioned  by  the  opinions  of  many 
of  the  most  eminent  judges. 

There  can  be  no  doubt  of  the  truth  of  this  observation  in 
those  cases  where  there  are  many  separate  circumstances,  proved 
by  several  different  witnesses,  all  tending  to  the  same  point  and 
necessarily  producing  the  same  result.  For  it  is  a  valuable 
maxim  of  the  law,  notwithstanding  what  some  visionary  wri- 
ters have  said  to  the  contrary,  that  "  circumstances  can  not  lie." 
It  is  true  circumstances  may  be  proved  by  witnesses,  and  those 
witnesses  may  lie.  But  it  is  also  true  that  if  a  corrupt  witness 
intends,  by  perjury,  to  convict  an  innocent  man,  such  witness 
will  be  much  more  likely  to  swear  positively  to  the  fact  of  the 
commission  of  the  crime,  than  to  circumstances  which  alone 
may  not  have  the  desired  effect  to  convict  the  object  of  his 
malice. 

In  most  cases  of  conviction  upon  presumptive  proof  or  cir- 
cumstantial evidence,  there  are  many  different  witnesses  swear- 
ing to  several  distinct  circumstances,  all  tending  to  the  same 
result,  each  of  which  circumstances  is  a  necessary  link  in  the 
chain  of  evidence  required  to  produce  a  conviction  of  the  ac- 
cused; and  there  is  therefore  the  less  danger  of  perjury  in  such 
cases  in  consequence  of  the  number  of  perjured  witnesses  which 
it  would  be  necessary  for  the  prosecution  to  produce  to  effect 
an  unjust  conviction.  For  if  one  perjured  witness  should  swear 
to  a  fact  forming  only  one  link  in  a  chain  of  circumstances,  the 
rest  of  the  witnesses  being  honest  he  will  be  in  danger  of  de- 
tection from  the  discrepancy  between  his  testimony  and  theirs; 
when  he  might  have  sworn  positively,  but  falsely,  tc  the  com- 
mission of  the  crime,  by  the  accused,  without  the  possibility  of 
being  contradicted.  For  this  reason,  although  from  the  imper- 
fection and  uncertainty  which  must  ever  exist  in  all  human 
tribunals,  I  have  no  doubt  that  there  have  been  cases  in  which 
innocent  persons  have  been  convicted  on  presumptive  proofs, 
yet  from  my  knowledge  of  criminal  jurisprudence,  both  from 
reading  and  from  observation,  I  have  no  hesitation  in  expressing 
the  opinion  thai,  where  there  has  been  one  unjust  conviction 


606 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  t;  Videto. 


upon  circumstantial  evidence  alone,  there  have  been  three  in- 
nocent persons  condemned  upon  the  positive  testimony  of  per- 
jured witnesses.  I  speak  more  particularly  in  reference  to  that 
country  from  which  our  laws  have  mostly  been  derived.  For- 
tunately for  the  people  of  the  United  States,  perjury  has  seldom, 
in  any  shape,  connected  itself  with  prosecutions  for  any  of  the 
higher  offences  in  our  courts  of  justice. 

Much  has  been  read  to  you,  as  law,  during  this  trial,  from  a 
treatise  called,  "  Tbe  Theory  of  Presumptive  Proof,  or,  an 
Inquiry  into  the  nature  of  Circumstantial  Evidence."  This 
"  theory,"  which  is  the  production  of  an  anonymous  English 
writer,  has  been  republished  in  this  country,  and  is  found  bound 
up  with  the  first  American  edition  of  Philips's  Treatise  on  the 
Law  of  Evidence,  and  has  frequently  been  confounded  with  that 
valuable  work.  But  it  is  my  duty  to  tell  you,  that  the  theory 
of  this  anonymous  writer,  which  the  American  editor  has  pub- 
lished, and  had  bound  up  in  the  same  volume  with  Philips's 
treatise,  is  not  considered  as  law  by  the  courts  in  this  or  any 
other  country.  It  is  an  attempt,  by  a  theoretical  writer,  to 
overturn  the  decisions  of  the  judges  of  the  superior  courts  in 
England,  and  to  set  up  his  individual  opinion  in  opposition  to 
the  law  as  settled  in  the  courts  of  justice  both  there  and  here. 

This  writer  has  remarked  very  freely,  and  in  some  instances 
very  justly,  upon  the  case  of  Captain  Donnellan,  who  though 
he  was  probably  guilty  of  the  murder  of  his  brother-in-law, 
was  convicted  upon  very  slight  circumstantial  evidence,  if  his 
case  is  correctly  reported.  In  addition  to  his  "  theory,"  the 
writer,  in  an  appendix  to  his  work,  has  collected  eleven  cases, 
for  the  purpose  of  illustrating  his  ideas,  and  to  show  the  danger 
of  convicting  upon  circumstantial  evidence.  These  cases  have 
been  seized  on  with  avidity,  and  are  generally  read  and  com- 
mented upon  by  those  who  are  engaged  in  the  defence  of  crim- 
inals, whether  the  evidence  against  the  accused  is  positive  or 
only  circumstantial. 

In  most  of  the  cases  stated  in  that  appendix,  it  is  said  tne 
accused  were  unjustly  convicted,  and  that  it  was  afterwards 
ascertained  they  were  innocent.  But,  in  nearly  all  of  those 


FRANKLIN,  JULY,  1825.  QQJ 

The  People  v.  Videto. 

cases,  the  fact  of  the  innocence  of  the  accused  depends  alto- 
gether upon  hearsay,  or  tradition. 

It  is  but  a  few  years  since  a  story  was  published  in  nearly  all 
of  the  newspapers  of  the  United  States,  that  a  man  by  the  name 
of  Hamilton  had  been  condemned  and  executed  in  one  of  the 
western  states,  and  that  his  innocence  was  afterwards  clearly 
established,  by  the  confession  of  the  man  who  had  actually 
committed  the  murder.  This  story,  for  a  time,  gained  entire 
credit,  and  was  generally  believed  wherever  it  was  told.  Yet, 
fortunately  for  the  administration  of  justice,  the  report  of  his 
innocence  was  discovered  to  be  a  base  fabrication,  put  in  cir- 
culation by  some  of  his  surviving  friends  for  the  purpose  of 
removing  a  stigma  from  the  name  of  the  man  who  had  justly 
suffered  the  penalty  of  the  law  for  a  most  wicked  and  aggra- 
vated robbery  and  murder.  It  is  not  improbable  that  some  of 
the  cases  collected  in  his  appendix,  by  the  anonymous  writer, 
before  referred  to,  are  cases  of  that  description.  But  if  they 
were  all  supported  by  well  attested  facts,  they  would  not  in  the 
least  diminish  the  weight  which  ought  to  be  given  to  circum- 
stantial evidence.  For  upon  examination,  it  will  be  found 
that  most  of  those  cases  were  convictions  upon  the  positive 
testimony  of  mistaken  or  perjured  witnesses. 

His  honor  then  adverted  particularly  to  each  of  the  cases 
stated  in  that  appendix,  and  observed  that  they  only  went  to 
support  the  opinion  he  had  before  expressed,  that  there  were 
more  unjust  convictions  upon  the  positive  testimony  of  mistaken 
or  perjured  witnesses,  than  from  erroneous  conclusions  of  juries 
in  deciding  upon  circumstantial  evidence. 

He  then  commented  upon  the  nature  of  presumptic  ns,  which 
he  told  the  jury  were  of  three  kinds: 

1.  Violent  Presumptions. —  Where  the  facts  and  circumstances 
proved  would  necessarily  attend  the  fact  presented.  As  if  your 
horse  had  been  shot  in  the  stable  by  a  musket  ball,  and  it  was 
proved  that  a  man  was  seen  immediately  before  to  load  his  gun 
and  go  into  the  stable;  that  the  report  of  a  musket  was  heard 
in  the  stable,  and  that  the  man  immediately  came  out  with  his 
gun  unloaded  and  fled.  These  circumstances  would  raise  a 


608  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Videto. 

violent  presumption  that  the  man  shot  the  horse,  because  the 
loading  of  the  gun,  the  report  in  the  stable,  and  the  gun  being 
unloaded  when  he  came  out,  are  all  facts  which  must  neces- 
sarily attend  the  fact  presumed ;  to  wit,  that  he  shot  the  horse. 
And  upon  such  testimony,  unexplained,  it  would  be  the  duty  of 
a  jury  to  give  a  verdict  against  him,  equally  as  it  would  be  if 
the  shooting  of  the  horse  was  positively  sworn  to  by  the  same 
witness.  For  in  either  case,  if  the  witness  was  to  be  credited, 
there  could  be  no  reasonable  doubt  of  the  guilt  of  the  accused, 
although  there  was  a  possibility  of  his  innocence. 

2.  Probable.  Presumptions. — Where   the   facts   and   circum- 
stances proved,  usually  attend  the  fact  presumed.     As  if  your 
horse  is  stolen,  and  shortly  thereafter  he  is  found  in  the  pos- 
session of  the  accused,  who  refuses  to  give  any  explanation  as 
to  the  manner  in  which  the  horse  came   into  his  possession. 
These  circumstances  raise  a  probable  presumption  that  the  ac- 
cused committed  the  theft.     It  is  every  day's  practice  to  convict 
on  such  circumstantial  evidence,  if   the  transaction  is  unex- 
plained. 

3.  Light  or  Rash  Presumptions. — When  the  facts  and  cir- 
cumstances proved  might  probably  attend  the  fact  presumed. 
As  if  a  man  gave  medicine  to  his  wife,  and  she  died  shortly 
afterwards,  it  would  be  a  light  presumption  of  the  fact  that  he 
had  given  her  poison  instead  of  medicine,  and  could  not  legally 
authorize  his  conviction  for  murder. 

But,  he  said,  there  are  many  circumstances  which,  taken 
separately,  would  only  amount  to  light  or  rash  presumptions, 
and  as  such  entitled  to  no  weight,  which,  if  they  were  well 
proved  and  connected  together  in  one  case,  might  amount  to 
probable  or  even  to  violent  presumption  of  guilt.  As  if  a  wife 
die  very  suddenly,  with  the  usual  symptoms  of  having  been 
poisoned.  It  is  proved  that  she  and  her  husband  were  on  ill 
terms;  that  he  had  threatened  her  life;  that  he  gave  her  liquor 
to  drink  shortly  before  those  symptoms  appeared;  that  he  was 
seen  to  put  something  into  the  bottle  of  liquor;  that  he  pur- 
chased arsenic  the  day  before;  that  the  bottle  being  inquired 
for  he  immediately  flung  away  the  liquor  remaining  therein; 


FRANKLIN,  JULY,  1885.  699 

The  People,  r.  Videto. 

that  he  gave  no  satisfactory  account  of  what  had  been  done 
with  the  arsenic;  that  he  caused  her  to  be  buried  unusually 
soon  after  her  death:  that  the  contents  of  her  stomach  bein" 

*  O 

analyzed  were  found  to  contain  arsenic.  Each  of  these  circum- 
stances, taken  by  itself,  and  perhaps  two  or  three  of  them 
together,  would  be  nothing  more  than  rash  or  light  presump- 
tions of  the  guilt  of  the  husband.  But  if  all  the  circumstances 
I  have  enumerated  were  satisfactorily  proved  by  credible  wit- 
nesses and  were  left  unexplained  by  the  accused,  they  might, 
when  taken  together,  carry  irresistible  conviction  to  the  minds 
of  the  jury  that  he  had  killed  his  wife  by  poison.  This  is  what 
is  called  a  chain  of  circumstances.  And  in  proportion  to  the 
number,  to  the  strength  and  to  the  close  connection  of  the  links 
of  which  that  chain  is  composed,  must  be  its  power  to  draw  the 
minds  of  the  jury  to  the  conclusion  of  fact  which  it  is  intended 
to  establish. 

As  the  facts  and  circumstances  in  each  particular  case  must 
be  in  some  respects  necessarily  peculiar  and  different  from  all 
others,  it  is  very  difficult  to  lay  down  general  rules  for  the 
guide  of  jurors  in  such  cases.  One  rule,  however,  which  ought 
never  to  be  departed  from,  is  that  no  one  should  be  convicted 
of  murder  upon  circumstantial  evidence,  unless  the  body  of  the 
person  supposed  to  have  been  murdered  has  been  found,  or 
there  be  other  clear  and  irresistible  proof  that  such  person  is 
actually  dead.  Secondly.  Each  circumstance  should  be  satis- 
factorily established  by  evidence,  and  should  not  be  presumed 
by  an  assumption  of  the  fact  that  the  accused  is  guilty.  Third. 
The  jury  should  give  as  much  weight  to  each  circumstance 
which  is  in  favor  of  the  accused,  as  they  do  to  circumstances 
of  the  same  importance  against  him.  Fourth.  If  the  existence 
of  any  circumstance  against  the  accused  is  not  established 
beyond  all  reasonable  doubt,  the  jury,  in  favor  of  life,  should 
reject  such  circumstance.  Fifth.  The  jury  should  always  act 
upon  the  presumption  that  the  accused  is  innocent,  and  should 
endeavor,  if  possible,  to  reconcile  all  the  circumstances  of  the 
case  with  that  side  of  the  question.  And  in  such  cases  it  is 
also  proper  that  the  former  good  character  of  the  accused,  if  it 

VOL.  L  77 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Videto. 


was  good,  should  be  taken  into  consideration,  and  given  its  full 
weight  in  behalf  of  the  accused. 

His  honor  told  the  jury  that  these  were  the  principles  and 
rules  by  which  they  should  be  governed  in  the  decision  of  this 
cause,  and  requested  their  undivided  attention  while  he  exami- 
ned the  testimony,  for  the  purpose  of  bringing  the  principal 
facts  to  their  recollection,  and  to  assist  them  in  the  examination 
of  the  evidence.  He  reminded  them  that  the  question  of  the 
prisoner's  guilt  or  innocence  was  one  which  it  belonged  to  them 
exclusively  to  decide,  and  added  that  if,  in  commenting  upon 
the  testimony,  he  should,  .unintentionally,  intimate  any  opinion 
upon  that  question,  they  must  reject  it,  and  found  their  verdict 
upon  their  own  unbiassed  convictions,  arising  from  the  testi- 
mony before  them.  He  then  examined  the  testimony  in  the 
case  at  length,  and  concluded  by  observing  that  if  the  jury, 
after  a  careful  examination  of  all  the  circumstances,  could  by 
the  assistance  of  their  reason,  reconcile  the  facts  with  the  inno- 
cence of  the  prisoner,  it  would  be  their  duty,  as  he  had  no  doubt 
it  would  be  a  pleasure,  to  pronounce  a  verdict  of  acquittal. 
But  if,  on  the  contrary,  after  they  had  fully  examined  and  rea- 
soned upon  the  testimony,  they  should  find  the  dreadful  truth 
pressing  upon  their  minds  with  such  irresistible  force  as  to  re- 
move therefrom  every  rational  doubt  of  the  prisoner's  guilt,  it 
would  be  their  imperious  'duty  to  pronounce,  as  the  result  of 
their  deliberations,  that  he  was  guilty  of  the  felony,  and  mur- 
der charged  in  the  indictment. 

The  prisoner  was  convicted,  and  subsequently  execi  ted. 


NEW  YORK,  NOVEMBER,  1843. 


AT  CHAMBERS      November  3,  1842.     Before  Reuben  H.  Wai- 
worth,  Chancellor  of  the  state  of  New  York. 

JOHN  C.  COLT  vs.  THE  PEorLE. 

The  court  of  Oyer  and  Terminer,  in  which  a  criminal  case  has  been  tried  and 
verdict  of  guilty  is  given,  ought  not  to  delay  the  sentence  for  the  purpose  of 
having  the  decision  reviewed  by  certiorari.  except  in  cases  of  great  doubt 
and  difficulty ;  in  other  cases,  the  defendant  should  be  left  to  his  writ  of  error. 
Even  in  capital  cases,  it  can  seldom  be  necessary  to  delay  the  sentence,  the 
governor  being  authorized  in  these  cases  to  take  the  opinion  of  the  attorney 
general  and  of  all  the  high  judicial  officers  of  the  state,  before  he  permits  the 
execution  of  the  sentence,  and  to  suspend  the  execution  of  the  sentence,  that 
the  case  may  be  brought  before  the  Supreme  Court  and  decided  on  a  writ  of 
error,  if  he  or  any  of  these  officers  entertains  any  doubt  as  to  the  legality  of 
the  conviction. 

Writs  of  error  in  cases  not  capital,  issue  of  course;  but  they  do  not  stay  the 
sentence,  without  an  express  order  to  that  effect  from  a  circuit  judge,  or  a 
judge  of  the  Supreme  Court. 

In  capital  cases,  no  writ  of  error  can  be  issued  unless  allowed  by  the  chan- 
cellor, or  one  of  the  justices  of  the  Supreme  Court,  or  a  circuit  judge  upon 
notice  given  to  the  attorney  general,  or  to  the  district  attorney  of  the  county 
in  which  the  conviction  was  had;  and  it  is  the  duty  of  the  officer  to  whom 
the  application  is  made,  to  disallow  the  same,  if  he  has  no  reason  to  doubt 
the  legality  of  the  conviction. 

Where  at  the  Oyer  and  Terminer  the  initiatory  proceedings  of  a  trial  for 
murder  had  been  commenced,  by  calling  the  jurors  as  directed  by  law.  and 
only  nineteen  of  the  jurors  answered  to  their  names,  whereupon  three 
hundred  additional  jurors  were  summoned  by  the  sheriff  under  direction  ol 
the  court,  and  the  court  refused  to  delay  the  trial  for  two  or  three  days,  as 
requested  by  the  prisoner's  counsel,  to  enable  them  to  examine  such  list  of 
additional  jurors,  it  was  held  that  the  question  to  be  decided  on  such  appli- 
cation was  a  matter  of  discretion,  and  that  no  exception  could  lie  to  such 
rcfuasl . 

Held,  also,  that  the  summoning  of  so  large  a  number  of  additional  jurors  was  a 
matter  of  sound  discretion,  to  be  exercised  by  the  court,  with  a  view  to  g<?t 
a  sufficient  number  who  were  qualified  and  competent,  from  which  a  full 
jury  could  be  obtained;  and  that  such  discretion  should  be  exercised,  upon 
the  knowledge  which  the  court  possessed,  of  the  probable  effects  which  a 
report  of  the  facts,  in  the  public  papers  and  otherwise  might  have  had,  in 
biassing  the  minds  of  jurors,  so  as  to  disqualify  them  from  serving  on  the 
trial. 

Where  on  a  trial  at  the  Oyer  and  Terminer,  the  prisoner  called  as  a  witness  a 
woman,  by  whom  he  proved  that  she  was  living  with  the  piisoner  as  hi* 


DECISIONS  IN  CRIMINAL  CASES. 
Colt  v.  The  People. 

mistress  and  not  as  his  wife,  so  as  to  make  her  a  competent  witness  in  his 
behalf,  and  then  proved,  by  her,  facts  deemed  material  in  the  case,  and  no 
attempt  was  made  on  the  part  of  the  public  prosecutor  to  impeach  her  testi- 
mony, it  was  held  that  the  prisoner  was  not  at  liberty  to  introduce  testimony 
to  sustain  her  character  for  truth  and  veracity,  (a) 

Where  there  is  no  evidence  before  the  grand  jury,  or  known  to  the  prosecutor, 
at  the  time  of  finding  the  indictment  for  murder,  to  show  what  instrument 
was  used  to  produce  the  mortal  wound,  it  is  proper  to  charge,  in  the  indict- 
ment, that  such  wound  was  inflicted  by  some  instrument  to  the  jurors  un- 
known; and  under  such  an  allegation,  it  is  competent  for  the  public 
prosecutor  to  introduce  evidence  to  raise  a  presumption  that  the  wound  was 
caused  by  a  pistol  ball ;  and  to  prove,  for  that  purpose,  that  the  prisoner  had 
pistols  in  his  possession  and  that  a  ball,  propelled  by  the  explosion  of  a  per- 
cussion cap,  would  be  likely  to  produce  such  a  wound;  or  to  prove  that  the 
prisoner  had  such  pistols,  for  the  purpose  of  satisfying  the  jury,  if  possible, 
in  connection  with  other  evidence  in  the  case,  that  the  prisoner  had  taken  the 
ramrod  from  the  pistol  and  driven  it  into  the  head  of  the  deceased. 

The  finding  of  the  jury  at  the  Oyer  and  Terminer  upon  a  mere  question  of 
fact,  can  not  be  reviewed  by  the  appellate  court  on  a  writ  of  error,  although 
it  appear  affirmatively  that  the  bill  of  exceptions  contains  all  the  testimony 
given  on  the  trial. 

The  provision  of  the  Revised  Statutes,  (2  R.  S.  204,  §28,)  authorizing  the 
Mayor,  Recorder  and  Aldermen  of  the  city  of  New  York,  or  two  of  them, 
to  sit  in  the  Oyer  and  Terminer  held  in  that  city,  as  a  constituent  part  there- 
of, is  not  a  violation  of  Art.  IV,  Sec.  7,  of  the  state  constitution  in  force  at 
the  time  of  its  enactment. 

This  case  came  before  Chancellor  Walworth,  in  November, 
1842,  upon  an  application  for  the  allowance  of  a  writ  of  error 
to  the  court  of  Oyer  and  Terminer  of  the  city  and  county  of 
New  York. 

The  applicant  was  indicted  for  the  murder  of  Samuel  Adams; 
and  was  tried  and  convicted  at  a  court  of  Oyer  and  Terminer 
in  the  city  and  county  of  New  York,  composed  of  the  circuit 
judge  of  the  first  circuit  and  two  aldermen  of  that  city,  in 
January,  1842.  After  the  verdict  the  sentence  or  judgment  of 
the  court  was  suspended  for  the  purpose  of  obtaining  the  deci- 
sion of  the  Supreme  Court  upon  certain  questions  raised  upon 
the  trial.  The  case  was  accordingly  brought  before  the 
Supreme  Court  by  certiorari,  as  authorized  by  the  revised 

(a)  See  The  People  v.  Gay,  page  308,  and  S.  C.  3  Selden,  R.  378' 


NEW  YORK,  NOVEMBER,  184*. 


Colt  v.  The  People. 


statutes,  and  some  of  the  objections,  or  alleged  grounds  of 
error,  raised  and  argued  upon  this  application  to  the  chan- 
cellor, were  argued  and  disposed  of  upon  that  certiorari.  The 
Supreme  Court  having  ordered  the  proceedings  to  be  re- 
mitted to  the  court  of  Oyer  and  Terminer,  with  directions  to 
proceed  and  pass  sentence  upon  the  prisoner,  final  judgment 
was  given  against  him  accordingly. 

The  prisoner's  counsel,  wishing  to  carry  the  case  before  the 
court  for  the  Correction  of  Errors,  supposed  it  was  necessary, 
to  enable  them  to  do  so,  first  to  bring  the  case  again  before  the 
Supreme  Court  by  writ  of  error,  and  have  the  judgment  of  the 
Oyer  and  Terminer  affirmed  there,  and  then  to  sue  out  another 
writ  of  error  to  the  Supreme  Court,  returnable  in  the  court  for 
the  Correction  of  Errors.  They  therefore  applied,  in  the  first 
place,  to  the  circuit  judge  before  whom  the  prisoner  was  tried, 
for  the  allowance  of  a  writ  of  error,  with  a  stay  of  proceedings. 
That  application  being  denied,  they  applied  to  one  of  the  justi- 
ces of  the  Supreme  Court  at  chambers,  who  with  the  concur- 
rence of  both  of  his  associates  on  the  bench,  also  denied  the 
application;  which  was  then  renewed  before  the  chancellor. 
On  this  application  some  new  questions,  particularly  one  as  to 
the  constitutionality  of  the  organization  of  the  court  of  Oyer 
and  Terminer  before  which  the  prisoner  was  tried  and  con- 
victed, which  were  not  raised  before  the  Supreme  Court  upon 
the  certiorari,  were  raised  by  the  counsel  for  the  prisoner. 

It  appeared  from  the  testimony  in  the  case  that  Adams  went 
to  the  room  of  the  prisoner  to  obtain  payment  of  a  debt  due 
from  the  latter;  that  a  witness  in  an  adjacent  room  heard  a 
scuffling,  and  the  noise  of  some  heavy  body  falling  on  the  floor, 
and  looking  through  the  key  hole  of  the  prisoner's  door,  which 
did  not  enable  him  to  see  within  three  or  four  feet  from  the 
floor,  he  discovered  the  prisoner  stooping  down,  and  doing 
something  which  caused  his  shoulders  to  raise  and  fall  alter- 
nately. The  body  of  the  deceased  had  been  put  into  a  box  by 
the  prisoner  and  transported  to  one  of  the  wharves  of  the  city 
to  be  shipped  to  a  distant  place.  And  when  found  there  was 
upon  the  head  of  the  corpse  the  marks  of  one  or  more  blows 


614 


DECISIONS  IN  CRIMINAL  CASES. 


Colt  v.  The  People. 


with  a  hatchet  or  hammer;  and  a  small  round  hole  in  the  side 
of  the  head,  leading  directly  to  the  brain,  about  the  size  of  a 
pistol  bullet,  which  it  was  found  difficult  to  account  for,  as  no 
report  of  a  pistol  was  heard  by  the  witness  who  was  in  the 
adjacent  room.  It  appeared,  however,  by  the  testimony  before 
the  coroner  and  on  the  trial,  that  there  was  found  in  the  pri- 
soner's room,  where  the  supposed  murder  was  committed,  one 
of  Colonel  Colt's  revolvers  which  was  not  loaded,  and  a  ram 
rod,  which  was  detached  therefrom,  but  fitting  the  bore  of  the 
revolver.  A  hammer  hachet  was  also  found  in  the  prisoner's 
room.  One  count  of  the  indictment,  therefore,  charged  the 
murder  to  have  been  perpetrated  with  a  hatchet;  and  another 
charged  that  it  was  done  with  some  instrument  to  the  jurors 
unknown.  Under  this  last  count  the  court,  before  which  the 
prisoner  was  tried,  allowed  the  public  prosecutor  to  produce 
evidence  tending  to  show  that  the  round  hole  in  the  head  of 
the  deceased  might  have  been  produced  by  a  pistol  ball  pro- 
pelled from  the  revolver  by  the  means  of  a  percussion  cap,  or 
in  some  other  way  which  would  not  cause  an  explosion  suffi- 
ciently loud  to  be  heard  in  the  adjacent  room.  To  the  admis- 
sion of  this  testimony,  the  prisoner's  counsel  excepted. 

In  the  course  of  the  trial  it  became  necessary  for  the  prisoner, 
as  his  counsel  supposed,  to  introduce  a  witness  with  whom  he 
was  cohabiting  at  the  time  of  the  alleged  murder,  and  to  show 
that  she  was  not  his  wife  but  his  mistress,  to  show  that  she- 
was  a  competent  witness  in  his  favor.  Having  examined  her 
as  a  witness,  his  counsel  offered  testimony  to  prove  that  her 
general  character  for  truth  and  veracity  was  good,  notwith- 
standing she  was  living  with  him  as  his  mistress.  That  testi- 
mony was  objected  to  by  the  public  prosecutor  and  overruled 
by  the  court. 

The  prisoner  having  pleaded  not  guilty  to  the  indictment,  on 
Monday  the  17th  of  January,  the  clerk  of  the  court  proceeded 
to  call  the  names  of  the  persons  on  the  panel  of  jurors  returned 
for  that  court,  preparatory  to  the  drawing  of  the  jury,  for  the 
trial  of  the  prisoner.  And  twenty-four  persons  duly  drawn  and 
summoned  to  attend  that  court  not  having  appeared,  the  court 


NEW  YORK,  NOVEMBER,  1842. 


Colt  ».  The  People. 


under  the  provisions  of  the  third  section  of  the  title  of  the  re- 
vised statutes  relative  to  the  trial  of  offences,  &c.,  ordered  the 
sheriff  to  summon  three  hundred  persons  duly  qualified  to  serve 
as  jurors,  to  complete  the  number  required  by  law,  to  attend  on 
the  next  Wednesday  morning,  at  ten  o'clock;  and  all  further 
proceedings  were  postponed  until  the  time  mentioned  in  that 
order.  At  that  time  the  clerk  was  directed  to  call  over  the 
original  panel  of  jurors,  and  only  fifteen  of  them  answered  to 
their  names.  The  prisoner's  counsel  then  moved  that  they 
might  be  furnished  with  a  copy  of  the  list  of  the  three  hundred 
additional  jurors  summoned  pursuant  to  the  order  of  the  court, 
and  that  two  or  three  days'  time  should  be  granted  to  them  to 
examine  that  list  before  the  trial.  The  court  refused  to  grant 
the  postponement  asked  for,  and  directed  the  trial  to  proceed 
forthwith.  The  counsel  of  the  prisoner  thereupon  challenged 
the  array  of  the  three  hundred  jurors  so  summoned;  because  so 
large  a  number  had  been  ordered  to  be  summoned;  because 
only  two  days  were  allowed  to  the  sheriff  to  execute  the  order 
of  the  court;  because  the  sheriff  had  not  furnished  the  prisoner's 
counsel  with  a  list  of  the  persons  so  summoned  before  the  day 
of  trial;  and  because  the  sheriff  had  obtained  the  names  of  such 
jurors  by  taking  them  from  the  list  of  grand  and  petit  jurors 
returned  to  the  county  clerk's  office  as  persons  qualified  to 
serve  on  juries.  But  the  court  decided  the  challenge  was  not 
sustainable  on  either  of  those  grounds. 

The  objection  to  the  organization  of  the  court  of  Oyer  and 
Terminer  was  that  the  aldermen,  being  elective  officers,  and 
not  appointed  by  the  governor  and  senate,  could  not  constitu- 
tionally be  judges  of  that  court. 

Dudley  Selden  and  David  Graham,  for  the  applicant  for  a 
•writ  of  error. 

James  R.  Whiting,  (Dist.  Att'y,)  for  the  people. 

THE  CHANCELLOR.  —  This  is  an  application  on  the  part  of 
John  C.  Colt,  who  has  been  convicted  of  the  crime  of  murder, 


DECISIONS  IN  CRIMINAL  CASES. 


Colt  v.  The  People. 


for  the  allowance  of  a  writ  of  error  to  the  court  of  Oyer  and 
Terminer  of  the  city  and  county  of  New  York,  to  remove  the 
record  into  the  Supreme  Court,  and  for  a  certificate  that  there 
is  probable  cause  to  stay  the  proceedings  upon  the  judgment, 
which  has  been  pronounced  against  the  prisoner. 

The  questions  arising  upon  the  writ  of  error  have  already 
been  before  the  Supreme  Court,  and  were  decided  against  the 
prisoner  there;  and  the  avowed  object  of  his  counsel  is  to 
carry  his  case  ultimately  to  the  court  for  the  Correction  of 
Errors.  But  they  suppose  that  as  the  court  of  Oyer  and  Ter- 
miner stayed  its  judgment  upon  the  verdict  of  the  jury,  and 
permitted  the  case  to  be  carried  before  the  Supreme  Court 
before  sentence,  there  is  now  no  other  way  to  get  the  case 
before  the  court  of  dernier  resort,  but  by  carrying  it  again 
before  the  Supreme  Court  by  a  writ  of  error;  and  after  that 
court  shall  have  affirmed  the  judgment,  which  has  been  given 
pursuant  to  the  former  direction  of  that  court,  to  sue  out  a 
second  writ  of  error,  from  the  court  of  dernier  resort,  directed 
to  the  Supreme  Court. 

Provided  the  prisoner's  counsel  are  right  in  supposing  they 
can  not  now  go  directly  to  the  Court  of  Errors,  which  I  am 
inclined  to  think  is  the  fact,  and  if  a  writ  of  error  from  the 
Supreme  Court  to  the  court  of  Oyer  and  Terminer  will  lie,  in 
such  a  case,  the  prisoner's  execution  must  necessarily  be  sus- 
pended until  these  forms  of  law  are  gone  through  with,  in  case 
of  the  allowance  of  this  writ;  should  the  governor  think  pro- 
per to  suspend  the  execution  of  the  sentence  for  that  reason 
alone.  But  necessary  delay,  which  the  forms  of  law  require,  is 
no  ground  for  refusing  the  writ,  in  a  proper  case.  It  only 
shows  that  the  legislation  which  allowed  criminal  cases  to  be 
carried  before  the  Supreme  Court  before  judgment,  was  highly 
inexpedient;  or  that  the  court  in  which  the  prisoner  is  tried 
should  not  permit  counsel  to  try  experiments  of  that  kind,  by  a 
delay  of  the  sentence,  except  in  cases  of  great  doubt  and  diffi- 
culty. 

Indeed,  even  in  capital  cases,  it  can  seldom  be  necessary 
thus  to  delay  the  sentence;  for  the  governor  is  authorized  to 


NEW  YORK,  NOVEMBER,  J842. 


Colt  v.  The  People. 


take  the  opinion  of  the  attorney  general,  and  of  all  the  high 
judicial  officers  of  the  state,  in  such  cases,  before  he  permits 
the  execution  of  the  sentence.  And  it  would  be  almost  a 
matter  of  course  for  him  to  suspend  the  execution  of  a  sen- 
tence until  the  case  could  be  brought  before  the  Supreme 
Court,  and  decided  upon  a  writ  of  error,  if  he  or  any  of  those 
officers  entertained  a  doubt  as  to  the  legality  of  the  conviction. 
And  in  cases  not  capital,  the  judges  of  the  court  who  try  the 
prisoner  certainly  ought  not  to  stay  the  sentence,  and  burthen 
the  county  with  the  expense  of  supporting  the  convict  until 
the  case  can  be  carried  to  the  Supreme  Court,  when  they  have 
no  doubt  as  to  the  correctness  of  the  conviction,  as  the  statute 
provides  for  a  stay  of  proceedings  after  sentence,  by  the  order 
of  a  justice  of  the  Supreme  Court  or  circuit  judge. 

Writs  of  error,  in  cases  not  capital,  issue  of  course;  but  they 
do  not  stay  the  execution  of  the  sentence,  without  an  express 
order  to  that  effect,  from  a  circuit  judge  or  a  judge  of  the  Su- 
preme Court.  In  capital  cases,  however,  the  law  has  provided 
that  no  writ  of  error  shall  be  issued  unless  allowed  by  the 
chancellor,  or  one  of  the  justices  of  the  Supreme  Court,  or  a 
circuit  judge;  upon  notice  given  to  the  attorney  general,  or  to 
the  district  attorney  of  the  county  where  the  conviction  was 
had.  This  provision  of  the  statute  necessarily  implies  a  duty, 
on  the  part  of  the  officer  to  whom  the  application  for  the  allow- 
ance of  the  writ  is  made,  to  disallow  the  same  if  he  has  no 
reason  to  doubt  the  legality  of  the  conviction  of  the  prisoner. 

All  the  justices  of  the  Supreme  Court  having  declined  to 
allow  a  writ  of  error  in  this  case,  and  the  application  having 
now  been  renewed  before  me,  and  counsel  having  been  heard 
at  length  thereon,  I  have  carefully  examined  the  whole  testi- 
mony in  the  case,  as  well  as  the  particular  questions  referred 
to  by  counsel  on  the  argument  as  grounds  of  error,  to  see  if 
there  was  any  thing  therein  which  could  justify  me  in  interfer- 
ing, by  the  allowance  of  this  writ.  • 

The  first  error  relied  upon  relates  to  the  organization  of  the 
Court  of  Oyer  and  Tenniner,  before  which  the  prisoner  was 

VOL  I.  78 


618 


DECISIONS  IN  CRIMINAL  CASES. 


Colt  ».  The  People. 


tried,  convicted  and  sentenced ;  the  questions  arising  upon 
which  point  I  shall  consider  after  examining  the  objections  to 
the  decisions  of  the  court  upon  the  trial,  which  the  counsel  for 
the  prisoner  have  thought  of  sufficient  importance  to  call  my 
attention  to  on  the  argument. 

The  first  objection  raised  at  the  trial  was  to  the  refusal  of 
the  court  to  delay  the  trial  two  or  three  days,  after  the  initiatory 
proceedings  had  commenced,  by  calling  the  jurors  as  directed 
by  law,  to  enable  the  prisoner's  counsel  to  examine  the  new 
list  of  additional  jurors  summoned  under  the  statute.  This  was 
a  matter  of  discretion  in  the  court,  if  the  court  was  authorized 
to  postpone  the  trial  at  all,  after  the  commencement  of  the 
initiatory  proceedings,  by  an  attempt  to  get  a  jury  in  court  for 
the  trial  of  this  particular  case.  And  I  am  satisfied  that  dis- 
cretion was  not  improperly  exercised.  The  summoning  so  large 
a  number  of  additional  jurors  was  a  matter  of  sound  discretion, 
to  be  exercised  by  the  court  with  a  view  to  get  a  sufficient 
number  who  were  qualified  and  competent  to  discharge  the 
duty,  from  which  a  full  jury  could  be  obtained. 

Such  discretion  must  of  course  be  exercised  upon  the  know- 
ledge which  the  court  possessed  out  of  the  case,  of  the  probable 
effects  which  a  report  of  the  facts  in  the  public  papers  and  other- 
wise might  have  had  in  biasing  the  minds  of  jurors  so  as  to 
disqualify  them  from  serving  on  the  trial.  And  although  the 
particular  circumstances  which  operated  upon  the  minds  of  the 
judges  to  induce  them  to  order  so  large  a  number  to  be  sum- 
moned can  not  appear  upon  the  record,  the  result  which  does 
appear  conclusively  shows  that  the  number  ordered  to  be  sum- 
moned was  not  unnecessarily  large.  For  out  of  the  nineteen 
jurors  who  answered  to  their  names  when  the  attempt  to  em- 
pannel  the  jury  first  commenced,  and  the  additional  three  hund- 
red summoned  by  the  sheriff,  but  two  hundred  and  twenty-five 
attended.  Of  these,  twenty-seven  were  excused  from  serving, 
for  legal  causes,%one  hundred  and  sixty-nine  were  challenged 
for  cause  and  were  found  to  have  made  up  the:r  opinions  upon 
the  case,  and  eighteen  more  challenged  perc  nptorily  by  the 
prisoner.  So  that  but  eleven  jurors  were  obtained  from  the 


NEW  YORK,  NOVEMBER,  18v2 
Colt  v.  The  People. 


whole  list,  and  it  was  still  found  necessary  to  award  a  tales  to 
complete  the  jury 

The  objection  that  the  prisoner  was  not  permitted  to  intro- 
duce testimony  to  sustain  the  character  for  truth  and  veracity 
of  his  own  witness,  Caroline  Henshaw,  who  was  not  attempted 
to  be  impeached,  is  clearly  untenable.  The  case  of  People  v. 
Rector,  (19  Wend.  569,)  which  is  relied  upon  to  sustain  this 
objection,  although  it  went  farther  than  I  before  supposed  the 
principle  had  ever  been  carried,  is  a  very  different  one  from 
this.  Here  the  prisoner  himself  is  compelled  to  call  a  witness 
and  show  that  she  is  living  with  him  as  his  mistress  and  not 
his  wife,  to  render  her  competent,  and  to  enable  him  to  prove 
facts  which  he  wished  to  get  before  the  jury,  and  which  could 
only  be  known  to  her  from  lodging  with  him.  And  no  attempt 
is  made  on  the  part  of  the  public  prosecutor  to  impeach  her 
testimony.  It  would  certainly  be  a  violation  of -all  principle 
to  permit  the  party  calling  a  witness  to  introduce  proof  of  ge- 
neral good  character  in  such  a  case. 

In  Rector's  case,  the  witness's  particular  bad  character  was 
drawn  out  upon  his  cross-examination,  for  the  purpose  of  ren- 
dering him  infamous,  as  he  justly  deserved  to  be,  and  thus  dis- 
crediting him  before  the  jury.  On  the  contrary,  in  this  case, 
the  public  prosecutor  directly  disavowed  any  intention  to  im- 
peach the  witness,  and  declared  his  belief  to  the  jury  that  she 
had  intended  to  testify  truly.  And  I  think  no  one  who  reads 
the  testimony  of  this  erring  woman,  however  deeply  she  has 
sinned  in  another  respect,  can  doubt  that  in  this  case  she  did 
not  intend  to  add  to  her  other  moral  offence  the  still  Heeper 
crime  of  perjury.  For  her  testimony,  while  it  proves  little  or 
nothing  in  favor  of  the  prisoner,  whom  she  had  strong  induce- 
ments to  screen  from  punishment,  if  she  believed  him  innocent, 
supplied  very  important  links  in  the  c  ain  of  evidence  on  the 
part  of  the  public  prosecutor. 

Even  upon  the  point  upon  which  the  prisoner's  counsel  sup- 
poses her  testimony  to  be  most  material  in  favor  of  the  prisoner, 
it  appears  to  me  it  is  generally  against  him.  He  made  no 
complaint  of  the  injury  upon  his  neck  or  shouldei  when  he 


620  DECISIONS  IN  CRIMINAL  CASE* 

Colt  v.  The  People. 

came  home  late  in  the  night  succeeding  the  fatal  encounter,  nor 
did  she  then  witness  any  attempt  to  conceal  such  a  bruise. 
But  the  next  day,  after  he  had  been  seen  lowering  down  the 
box  with  the  edge  of  it  against  his  shoulder,  he  went  home  and 
bathed  his  shoulder  and  neck  in  spirits  and  went  to  bed,  and 
took  pains  to  conceal  the  injury  by  pinning  up  his  night  shirt 
about  his  neck. 

I  think  the  circuit  judge  was  right,  according  to  the  settled 
law,  in  allowing  evidence  to  be  given  to  raise  a  presumption 
that  the  small  wound  in  the  side  of  the  head  of  the  deceased 
was  caused  by  a  pistol  ball,  under  either  count  of  the  indict- 
ment. As  there  was  no  evidence  before  the  grand  jury,  or 
known  to  the  prosecutor  at  the  time  of  finding  the  indictment, 
to  show  with  anything  approaching  to  certainty,  or  even  prob- 
ability, what  instrument  was  used  to  produce  that  wound, 
which,  of  itself,  was  sufficient  to  produce  death,  it  was  proper 
to  charge  in  the  indictment  that  a  mortal  wound  was  inflicted 
with  some  instrument  to  the  jurors  unknown.  And  under  that 
count  it  was  allowable  to  introduce  the  evidence  that  the  pri- 
soner had  in  his  possession  such  pistols,  arid  that  a  ball  propelled 
by  the  explosion  of  a  percussion  cap  would  be  likely  to  produce 
such  a  wound;  or  the  public  prosecutor,  under  that  count,  might 
have  produced  evidence  of  the  prisoner's  having  in  his  pos- 
session such  pistol?,  for  the  purpose  of  satisfying  the  jury  if 
possible,  that  he  had  taken  the  ramnfd  from  the  pistol,  wnen 
Wheeler  saw  him  go  to  the  table,  and  had  driven  it  into  this 
part  of  the  head  by  a  blow  of  the  hatchet,  while  the  deceased 
was  lying  senseless  upon  the  floor. 

If  this  wound  could  not  have  been  made  with  the  hatchet, 
and  there  had  been  proof  that  the  pistols  had  a  rammer  corres- 
ponding with  the  size  of  the  ball,  I  should  suppose  this  a  more 
probable  supposition,  in  connection  with  the  testimony  of 
Wheeler,  than  that  a  pistol  ball  could  have  been  shot  through 
this  part  of  the  head  with  a  mere  percussion  cap,  and  at  so 
short  a  distance.  The  testimony  of  Dr.  Rogers,  however,  is, 
that  the  corner  of  the  hatchet's  edge,  if  he  d  by  a  person  stand- 
ing in  front  of  the  deceased  while  he  was  on  his  feet,  exactly 


NEW  YORK,   NOVEMBER,  1842. 


Colt  v  The  People. 


fitted  this  hole  in  the  skull,  and  as  the  skull  and  hatchet  were 
placed  together  before  the  jury,  they  could,  of  course,  see  whe- 
ther he  was  correct,  as  it  required  no  surgical  skill  to  see  that 
the  corner  of  the  hatchet  filled  the  hole  with  the  handle  toward 
the  face. 

As  the  statute  uses  the  words  "  by  accident  and  misfortune, 
and  not  done  in  a  cruel  or  unusual  manner,"  in  defining  excu- 
sable homicide,!  do  not  see  how  any  one  can  doubt  the  correct- 
ness of  the  judge's  charge  in  telling  the  jury  that  those  ex- 
pressions were  not  to  be  rejected  as  surplusage  for  the  purpose 
of  bringing  the  case  within  the  second  subdivision  of  the  fourth 
section  of  the  statute  on  this  subject. 

In  addition  to  the  questions  raised  by  the  bill  of  exceptions, 
the  counsel  for  the  prisoner  insists  that  as  it  is  admitted  by  the 
public  prosecutor  that  the  bill  of  exceptions  contained  all  the 
testimony,  the  court  above,  upon  a  writ  of  error,  has  the  right 
to  reexamine  the  finding  of  the  jury  upon  matters  of  evidence 
under  the  provisions  of  the  revised  statutes,  and  to  reverse  the 
judgment,  if  the  judges  of  the  appellate  court  have  any  doubts, 
from  the  evidence,  as  to  the  guilt  of  the  prisoner. 

I  have,  therefore,  carefully  examined  the  whole  testimony, 
in  connection  with  the  arguments  of  counsel  upon  the  facts,  for 
the  purpose  of  satisfying  myself  whether  there  was  any  reason 
to  doubt  that  this  was  a  case  of  willful  murder.  But  as  I  am 
satisfied  upon  a  full  examination  of  the  provisions  of  the  re- 
vised statutes,  to  which  I  was  referred,  that  the  decision  of  the 
jury  upon  a  mere  matter  of  fact  can  not  be  reviewed  upon  a 
writ  of  error,  it  is  unnecessary  that  I  should  state  the  conclusion 
[  have  formed  as  to  the  prisoner's  guilt  or  innocence,  or  the 
reasons  upon  which  my  opinion  is  based. 

The  objection  as  to  the  organization  of  the  court  involves 
the  question  whether  there  has  been  any  court  of  Oyer  and  Ter- 
miner  constitutionally  organized  in  this  city  since  the  first  of 
January,  1823,  or  whether  every  conviction  in  that  court  for  the 
last  twenty  years  has  not  been  illegal  and  unconstitutional, 
except  in  one  case,  in  which  a  special  commission  of  Oyer  and 
Terminer  was  issued.  Indeed,  it  involves  the  question  whether 


622  DECISIONS  IN  CRIMINAL  CASES. 

Colt  c.  The  People. 

any  court  of  Oyer  and  Terminer  can  he  held  in  this  city,  under 
the  provisions  of  the  revised  statutes,  without  such  a  special 
commission  to  be  issued  by  the  governor  \vith  the  advice  and 
consent  of  the  senate.  For  the  courts  of  Oyer  and  Terminer  in 
this  city,  by  the  provision  of  the  revised  statutes,  (2  R.  S.  204, 
§28,)  must  be  held  by  one  or  more  justices  of  the  Supreme  Court, 
or  of  the  circuit  judges,  or  by  the  first  judge  of  the  Common 
Pleas,  together  with,  the  mayor,  recorder  and  aldermen  of  the 
city,  or  with  two  of  them.  That  is,  if  all  the  justices  of  the 
Supreme  Court,  or  all  the  circuit  judges,  were  present  on  the 
bench,  they  could  not  hold  a  court  without  having  also  associ- 
ated with  them  the  mayor,  recorder  and  aldermen,  or  at  least 
two  of  those  officers.  And  as  the  mayor  as  well  as  the  alder- 
men is  now  elective,  if  none  but  those  who  are  appointed  by 
the  governor  and  senate  can  act  as  justices  of  Oyer  and  Terminer, 
it  follows,  of  course,  that  there  is  no  law  in  force  by  which  a 
court  can  be  organized  here,  without  calling  the  senate  together 
to  consent  to  the  issuing  of  a  special  commission. 

This  does  not  show  that  the  prisoner,  or  any  other  person  who 
has  been  convicted  in  the  Oyer  and  Terminer  within  the  last 
twenty  years  in  this  city,  if  not  already  executed,  may  not  still 
raise  the  constitutional  question  which  is  now  agitated.  But 
this  long  acquiescence  in  the  construction  of  the  constitution, 
renders  it  highly  probable  that  the  construction  which  was 
given  to  it  upon  the  first  organization  of  the  government  under 
it  in  1823,  and  which  construction  has  been  also  given  at  nearly 
every  session  of  the  legislature  since  that  time,  is  most  probably 
correct.  Still  if  there  is  any  reason  to  believe  that  the  judgment 
in  the  present  case  will  be  reversed  by  the  court  for  the  Correc- 
tion of  Errors  on  that  ground,  and  certainly  if  I  have  any  reason 
to  doubt  whether  the  prisoner  has  or  has  not  been  convicted 
before  a  court  organized  in  direct  violation  of  a  positive  pro- 
vision of  the  constitution,  I  can  not  refuse  him  the  benefit  of  a 
writ  of  error,  where  I  have  the  power  to  grant  it.  I  therefore 
proceed  to  examine  the  grounds  upon  which  his  counsel  suppose 
it  probable  that  the  judgment  may  be  reversed  on  account  of 
the  supposed  illegal  organization  of  the  court 


NEW  YORK,  NOVEMBER,  1842. 


Colt  ».  The  People. 


In  the  case  of  The  People  on  the  relation  of  the  Attorney  Ge- 
neral v.  Varian,  the  Mayor  and  certain  JJldermen  of  the  city  of 
New  York,  (25  Wend.  Rep.  9,)  which  arose  out  of  the  trial  of  a 
justice  in  the  court  of  common  p\eas  for  alleged  misconduct,  the 
question  was  brought  before  the  Supreme  Court,  whether  the 
mayor  and  aldermen,  or  either  of  them,  could  act  as  judges  in  the 
county  court  of  that  city.  That  court  unanimously  decided  the 
constitutional  question  in  favor  of  the  mayor  and  aldermen. 
(25  Wend,  Rep.  10,  26.)  And  the  case  being  carried  to  the 
court  for  the  Correction  of  Errors,  the  judgment  of  the  Supreme 
Court  was  affirmed  by  a  tie  vote.  Seven  of  the  law  members 
of  that  court  voting  in  favor  of  the  affirmance,  and  Messrs. 
Root,  Dixon  and  Lee,  who  were  also  lawyers,  voting  for  a  re- 
versal of  the  judgment  of  the  court  below 

It  will  be  seen,  however,  by  an  examination  of  the  opinions 
of  Mr.  Dixon  and  Gen.  Root,  that  they  placed  their  opinions 
upon  two  provisions  of  the  constitution,  the  last  of  which  has 
no  application  to  this  case;  the  first  being  the  general  provision 
as  to  the  appointment  of  judicial  officers,  and  the  other  being 
that  which  in  express  terms  required  judges  of  the  county  courts 
to  be  appointed  for  five  years.  And  it  is  evident  that  Senator 
Dixon's  opinion  was  mainly  based  upon  this  last  clause  of  the 
constitution. 

Senator  Hull  also,  a  most  worthy  and  conscientious  member 
of  that  court,  who  is  not  a  lawyer,  but  who  delivered  a  written 
opinion  in  favor  of  the  reversal  of  the  judgment  of  the  supreme 
court,  confines  his  remarks  to  the  right  of  the  mayor  and  alder- 
men to  act  as  judges  of  the  court  of  Common  Pleas,  in  violation, 
as  he  supposed,  of  the  constitution,  and  says  nothing  of  their 
right  to  act  as  justices  of  the  Oyer  and  Terrniner.  It  is  very 
doubtful,  therefore,  whether  any  considerable  number  of  those 
who  voted  to  reverse  the  judgment  c  f  the  Supreme  Court,  would 
have  given  the  same  vote  if  the  question  had  arisen  as  to  the 
right  of  the  mayor  and  aldermen  to  act  as  justices  of  Oyer  and 
Terminer  in  this  and  other  cities  of  the  state,  where  the  statutes 
have  authorized  them  to  act  as  such. 

Again;  the  case  of  The  People  v.  White  (24  Wend.  520)  was 


DECISIONS  IN  CRIMINAL  CASES. 


Colt  v.  The  People. 


decided  by  the  same  court  and  at  the  same  time;  in  which  case 
the  question  as  to  the  right  of  the  aldermen  to  act  as  justices 
of  Oyer  and  Terminer  arose  and  had  been  argued  by  counsel. 
And  in  that  case  both  General  Root  and  Senator  Dixon  held 
that  the  fact  that  aldermen  acted  as  justices  of  Oyer  and  Ter 
miner  upon  the  trial  of  the  prisoner,  was  no  ground  for  revers- 
ing the  judgment.  I  think,  therefore,  that  if  the  case  was 
brought  before  the  judges  who  decided  the  case  first  referred 
to,  upon  the  question  which  the  prisoner  wishes  to  raise,  as  to 
the  organization  of  the  court,  there  is  not  the  remotest  proba- 
bility that  he  would  have  succeeded  in  reversing  this  judgment, 
and  there  probably  would  not  have  been  two  votes  in  his  favor 
on  that  ground.  For  the  same  and  other  reasons  I  do  not  think 
there  is  any  probability  that  any  considerable  number  of  those 
who  now  are  or  hereafter  may  be  members  of  that  court,  will 
vote*to  reverse  a  judgment  on  the  ground  that  aldermen  were 
associated  with  the  circuit  judge  in  the  organization  of  the 
court  of  Oyer  and  Terminer,  before  which  the  prisoner  was 
tried. 

It  is  true  I  then  did  and  do  still  differ  in  opinion  with  those 
who  think  a  prisoner  can  not  upon  a  writ  of  error  avail  him- 
self of  the  objection  that  the  law  organizing  the  court  before 
which  he  was  tried  and  convicted,  was  unconstitutional;  even 
if  the  judges  of  such  a  court  would  not  themselves  be  liable  to 
be  punished  criminally  for  directing  their  illegal  sentence  <o 
be  executed  upon  him.  But  I  am  much  more  confident  that  I 
am  right  in  supposing  there  is  not  the  least  probability  that 
the  court  of  dernier  resort,  to  which  it  is  now  sought  to  carry 
(his  case  for  review,  will  reverse  the  judgment  on  the  ground 
that  the  court  of  Oyer  and  Terminer  was  not  properly  organ- 
ized. 

No  one  not  immedi-ately  acquainted  with  the  condemned  in- 
dividual whose  case  I  have  been  considering,  can  more  deeply 
regret  than  I  do  the  situation  in  which  he  is  placed,  or  sym- 
pathize more  sincerely  with  his  numerous  connections.  It  has 
been  my  good  fortune  to  be  acquainted  with  many  of  them,  and 
I  know  them  to  be  among  the  most  respectabJe  in  any  commu 


GREENE,  DECEMBER,  1854. 


The  People  ».  Morrison. 


nity.  With  one  of  them,  a  lady  who  is  a  very  near  relative, 
I  have  been  on  terms  of  intimacy  and  friendship  for  more  than 
thirty  years.  But  in  the  administration  of  justice,  upon  which 
not  only  the  safety  of  the  community,  but  all  that  is  dear  in  life 
depends,  the  calls  of  private  friendship  must,  or  at  least  should, 
always  give  way  to  the  stern  demands  of  public  duty.  And  as 
the  prevention  of  crime  depends  almost  as  much  upon  the 
rapidity  as  upon  the  certainty  with  which  the  punishment  fol- 
lows upon  the  detection  of  the  offence,  the  judge  who  impro- 
perly retards  the  execution  of  the  sentence  of  the  law  after  the 
accused  has  been  rightfully  and  legally  convicted  of  the  offence, 
does  nearly  as  great  an  injury  to  the  public  as  one  who  screens 
him  from  punishment  altogether. 

Having  therefore  arrived  at  the  conclusion  that  there  is  no 
probable  cause  for  supposing  that  there  is  any  error  in  the  judg- 
ment in  this  cause,  or  any  reason  to  doubt  that  the  prisoner  has 
been  properly  convicted,  if  the  jury  came  to  a  correct  conclu- 
sion upon  the  questions  of  fact  which  it  belonged  to  them 
exclusively  to  'decide,  I  must  do  as  the  justices  of  the  Supreme 
Court  have  done,  refuse  to  allow  this  writ  of  error. 


GREENE  OVER  AND  TERMINER.  December  1854.  Before  Har- 
ris, Justice  of  the  Supreme  Court  and  the  Justices  of  the 
Sessions. 

THE  PEOPLE  vs.  MARTIN  MORRISON. 

A  court  of  Oyer  and  Terminer  has  power  to  grant  a  new  trial  on  the  merits, 
after  a  defendant  has  been  convicted  of  a  felony. 

The  cases  of  The  People  v.  The  Judges  of  the  Dutchess  Oyer  and  Terminer,  (2 
Barb.  Sup.  Court  R.  282,)  and  the  United  Statet  v.  Gilbert,  (2  Sumner,  19) 
reviewed  and  disapproved. 

The  question,  whether  the  court  of  Oyer  and  Terminer  is  a  Superior  Court 
of  general  jurisdiction,  discussed. 

To  warrant  a  conviction  for  rape,  under  the  2d  sub.  of  $  22,  (2  R.  S.  663,)  it 
ought  to  appear  that  there  was  the  utmost  reluctance  and  the  utmost  re- 
sistance on  the  part  of  the  prosecutrix. 
VOL.  I.  79 


026 


DECISIONS  IIS7  CRIMINAL  CASES. 


The  People  v   Morrison. 


The  defendant  was  tried  at  the  Greene  Oyer  and  Terminer, 
held  in  April,  1854,  Harris,  J.,  presiding,  for  the  crime  of 
rape,  and  convicted.  Upon  the  application  of  the  defendant's 
counsel,  sentence  was  suspended,  and,  at  an  adjourned  session 
of  the  court,  held  in  May  following,  a  motion  was  made  for  a 
new  trial,  upon  the  ground  that  the  verdict  was  against  the 
weight  of  evidence.  The  facts  will  sufficiently  appear  in  the 
opinion  of  the  court. 

P.  C.  Mattoon,  (Dist.  Att'y,)  and  M.  Sanford,  for  the  people 
L.  Tremain,  for  defendant. 

By  the  Court,  HARRIS,  J.  —  The  power  to  grant  a  new  trial 
either  in  civil  or  criminal  cases,  constituted  no  part  of  the 
jurisdiction  of  the  court  at  common  law.  The  first  reported 
case  of  a  new  trial  being  granted,  upon  the  merits,  is  that  of 
Wood  v.  Gunsfon,  in  1655,  (Style,  466,)  where,  in  an  action  of 
slander,  the  verdict  was  set  aside  and  a  new  trial  awarded  on 
the  ground  of  excessive  damages.  Indeed,  in  that  case,  the 
decision  was  put  upon  the  misbehavior  of  the  jury.  It  was  re- 
garded rather  as  a  case  of  irregularity,  than  an  application  for 
a  new  trial  upon  the  merits.  Just  before  this,  it  had  been  said 
by  Rolle,  J.,  in  Blade's  case,  (Style,  138,)  that  the  only  remedy 
for  the  party,  complaining  of  the  injustice  of  a  verdict,  was  to 
attaint  the  jury.  (See  3  Bl.  Com.  388.)  It  was  not  until  the 
time  of  Lord  Mansfield  that  the  power  of  the  common  law 
courts  to  grant  a  new  trial  in  any  case  where  it  was  necessary 
for  the  attainment  of  justice  was  fully  established.  (See 
Bright  v.  Eynon,  1  Burr,  394;  Vernon  v.  Hankey,  2  Term  R. 
113.)  In  the  latter  case,  decided  in  1787,  and  during  the  last 
of  the  thirty-two  years  that  Lord  Mansfield  presided  in  the 
court  of  King's  Bench,  Duller,  J.,  said,  "  motions  for  new  trials 
have  been  very  much  encouraged  of  late  years,  and  I  shall 
never  discourage  them,  for  nothing  tends  more  to  the  due 
administration  of  justice,  or  even  to  the  satisfaction  of  parties 
themselves."  And,  in  the  former  case,  Lord  Mansfield  himself 


GREENE,  DECEMBER,   1854. 


The  People  v.  Morrison. 


said,  "  Trials  by  jury  in  civil  cases  could  not  subsist  now, 
without  power  somewhere  to  grant  new  trials.  A  general 
verdict  can  only  be  set  right  by  a  new  trial,  which  is  no  more 
than  having  the  cause  more  deliberately  considered  by  another 
jury  when  there  is  reasonable  doubt,  or  perhaps  a  certainty 
that  justice  has  not  been  done.  The  writ  of  attaint  is  now  a 
mere  sound  in  every  case."  And  again  he  says:  "  It  is  abso- 
lutely necessary  to  justice  that  there  should,  upon  many  occa- 
sions, be  opportunities  of  reconsidering  the  case  by  a  new 
trial." 

But  in  criminal  cases,  where  the  offence  amounts  to  a  felony, 
a  new  trial  is  not  granted  in  England.  The  same  end  is 
accomplished  in  another  and  more  summary  way.  The  entire 
separation  of  judicial  and  executive  powers,  which  is  so  pro- 
minent a  characteristic  of  both  the  state  and  federal  govern- 
ments of  the  United  States,  is  not  found  in  the  British  con- 
stitution. On  the  contrary,  the  king  is  regarded  as  the  fountain 
of  all  justice  as  well  as  mercy,  and  the  judiciary  but  his 
ministers  to  dispense  his  judgments.  While,  in  the  United 
States,  the  pardoning  power  can  only  be  exercised  after  con- 
viction, in  England,  there  is  no  such  restriction.  The  king 
may  pardon  before  trial,  and  even  before  indictment.  The 
accused,  upon  being  arraigned,  may  plead  a  pardon  of  his 
crime.  "  This,"  says  Blackstone,  "  is  indeed  one  of  the  great 
advantages  of  monarchy  in  general,  above  any  other  form  of 
government — that  there  is  a  magistrate,  who  has  it  in  his 
power  to  extend  mercy  wherever  he  thinks  it  is  deserved;  hold- 
ing a  court  of  equity  in  his  own  breast,  to  soften  the  rigor  of 
the  criminal  law  in  such  criminal  cases  as  merit  an  exemption 
from  punishment."  (4  Bl.  Com.  397.)  If,  upon  a  criminal 
trial,  the  presiding  judge  is  in  doubt  upon  a  question  of  law, 
he  reserves  it  for  the  consideration  of  all  the  judges.  If  he  is 
dissatisfied  with  the  decision  of  the  jury,  he  suspends  sentence, 
or  may  reprieve  the  prisoner,  and  reports  the  case,  with  his 
recommendation,  to  the  ministers  of  the  crown.  Such  recom- 
mendation is  never  disregarded.  The  punishment  is  modified, 
or  the  accused  is  wholly  discharged,  according  to  the  views  the 


028  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Morrison. 

judge  may  entertain  of  the  merits  of  the  case.  Under  such  a 
system,  a  second  trial  can  never  be  necessary.  The  prisoner 
can  never  be  punished  unless  the  court  agree  with  the  jury  in 
the  justice  of  their  verdict.  Where  this  is  not  the  case,  the 
court  takes  the  matter  into  its  own  hands,  and,  through  the 
instrumentality  of  the  crown,  modifies  the  punishment  or  dis- 
penses with  it  altogether,  according  to  its  own  notions  of 
justice,  uncontrolled  by  the  verdict.  Thus,  all  the  advantages 
which  could  be  secured  to  the  party  accused  by  granting  him 
a  new  trial  are  attained  without  the  intervention  of  a  second 
jury. 

It  is  quite  unnecessary  to  say  that  nothing  analogous  to  this 
practice  has  ever  found  its  way  into  the  criminal  jurisprudence 
of  the  United  States.  From  its  earliest  history  the  criminal 
courts,  both  state  and  federal,  have  assumed  and  exercised, 
with  singular  uniformity,  the  power  of  granting  new  trials 
upon  the  merits.  After  a  most  diligent  examination,  I  feel 
great  confidence  in  asserting  that  the  case  reported  in  2  Barb. 
282,  (The  People  on  the  relation  of  Case  v.  The  Judges  of  the 
Dutchess  Oyer  and  Terminer,}  is  the  only  American  case  in 
which  it  has  been  adjudged  that  a  court  of  Oyer  and  Terminer, 
or  any  other  court  of  kindred  jurisdiction,  has  not  the  power 
to  grant  a  new  trial  upon  the  merits.  Although,  from  the  na- 
ture of  criminal  trials,  it  is  not  often  that  they  find  their  way 
into  judicial  reports,  yet  there  are  reported  cases  in  this  state, 
and  in  most,  if  not  all  the  other  states,  and  in  the  criminal 
courts  of  the  United  Stages,  where  this  power  has  been  asserted 
without  hesitation,  and  freely  exercised.  And  whenever  it  has 
been  denied  or  doubted,  with  the  exception  of  one  or  two  cases 
which  I  shall  have  occasion  to  notice  presently,  it  has  been 
vindicated  and  maintained.  I  am  confident,  too,  that  there  are 
but  few  lawyers  of  extended  experience,  who  can  not  call  to 
mind  instances  of  unreported  cases  in  which  new  trials  have 
been  granted  upon  the  merits,  in  criminal  cases.  It  is  true  that 
in  1799,  the  Supreme  Court  of  this  state  granted  a  mandamus 
to  compel  the  court  of  General  Sessions  in  Chenango  to  proceed 
to  sentence  a  prisoner  who  had  been  convicted  of  felony,  al« 


GREENE,  DECEMBER,   1854. 


The  People  v.  Morrison. 


though  that  court  had  awarded  a  new  trial  on  the  merits,  the 
conviction  being,  in  its  judgment,  against  the  evidence.  The 
court  there  say  that,  in  cases  of  felony,  considerations  of  policy 
and  expediency  would  prevent  the  Supreme  Court  itself  from 
granting  a  new  trial,  and  that,  in  such  cases,  the  usual  course 
was  to  recommend  the  convict  for  pardon.  The  People  v.  Jus- 
tices of  Chenango,  (1  John.  Cases,  179.)  Were  it  at  all  to  my 
purpose,  I  think  it  might  be  shown  that  the  arguments  by  which 
the  court  reached  the  conclusion  that  the  General  Sessions  had 
not  the  power  to  grant  a  new  trial  when  the  verdict  was  against 
evidence,  are  unsound.  But  it  is  enough  to  say,  that  the  court, 
while  referring  to  the  "  policy  and  expediency"  of  granting  a 
new  trial  does  not  deny  or  question  its  power.  This  power  had 
been  exercised  but  two  terms  before,  in  the  case  of  The  People 
v.  Townsend,  (1  Johns.  Cases,  104.)  In  The  People  v.  Stone, 
(5  Wend.  39,)  the  question  was  fully  considered,  and  it  was 
held,  upon  both  principle  and  authority,  that  courts  of  Oyer  and 
Terminer  have  the  power  to  grant  new  trials  upon  the  merits. 
Marcy,  J.,  in  delivering  the  opinion  of  the  court,  says:  "  The 
policy,  in  respect  to  new  trials  in  criminal  cases,  which  the 
English  courts  have  pursued  has  never  been  countenanced  by 
our  courts,  and  would  never  be  tolerated  by  our  people."  But 
in  The  People  v.  Comstoc/c,  (8  Wend.  549,)  which  came  before 
the  court  two  years  after  the  decision  in  The  People  v.  Stone, 
upon  an  application  for  a  new  trial,  after  the  defendant  had 
been  acquitted,  Sutherland,  J.,  has  unfortunately  cited  the 
English  rule  on  the  subject  of  new  trials  in  criminal  cases,  as 
if  no  distinction  existed  in  the  practice  in  the  two  countries. 
He  refers  to  the  rule  as  stated  by  Chitty,  in  his  Treatise  on 
English  Criminal  Law,  and  quotes  from  the  argument  of  coun- 
sel and  the  opinion  of  the  court,  in  The  King  v.  Mawbey,  (6 
Term  Rep.  625,)  but  takes  no  notice  of  any  of  the  American 
cases,  not  even  of  The  Peoplev.  Stone,  in  the  decision  of  which 
he  had  himself  so  recently  concurred.  The  question  was  not  in 
judgment  at  the  time.  The  principle  that,  having  been  once 
acquitted,  he  should  not  again  be  put  in  jeopardy  secured  the 
defendant  against  another  trial.  The  court  had  no  occasion, 


630 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Morrison. 


therefore,  to  refer  to  the  question  whether,  after  a  conviction, 
it  had  the  power,  upon  the  application  of  the  prisoner,  to  set 
aside  the  conviction  and  award  a  new  trial.  It  is  quite  evident, 
I  think,  that  having  thus  incidentally,  if  not  inadvertently, 
stated  the  English  doctrine  on  the  subject  of  new  trials  in  crim- 
inal cases,  it  did  not  occur  to  the  learned  judge  to  notice  the 
distinction  between  that  and  the  American  practice,  which  he 
had  himself  so  recently  recognized. 

And  yet,  strange  as  it  may  appear,  this  case  has  been  made 
to  contribute  largely  to  the  work  of  unsettling  the  law  on  the 
subject  now  under  consideration.  "  In  the  case  of  The  People 
v.  Comstock"  says  Mr.  Justice  Story,  in  The  People  v.  The 
Judges,  <§rc.  (2  Barb.  291,)  the  late  Supreme  Court,  in  effect, 
overruled  the  decision  in  The  People  v.  Stone,  and  followed  the 
common  law  rule;  that  being  the  latest  decision  on  the  subject, 
is  of  course  entitled  to  the  greatest  weight."  And,  again,  the 
same  judge,  in  the  same  opinion,  relying  upon  the  dictum  of 
Mr.  Justice  Sutherland,  as  he  must  have  done,  for  it  is  the  only 
instance  in  which  the  power  in  question  has  been  denied  or 
doubted,  says:  "  The  decisions  of  the  late  Supreme  Court,  on 
the  question  now  under  consideration,  have  not  been  uniform, 
and  we  are  at  liberty  to  adopt  such  rule  as  we  think  the  law 
requires,  without  a  material  departure  from  the  principle ( stare 
decisis.'"  Thus,  an  inconsiderate  remark  in  The  People  v.  Corn- 
stock,  upon  a  subject  inapplicable  to  the  question  then  before 
the  court,  has  been  made  to  serve  the  purpose  of  opening  a 
question  of  criminal  law  which  had  been  settled  by  an  uninter- 
rupted course  of  decision  and  practice  reaching  back  as  far  as 
our  judicial  history  will  carry  us.  Finding  the  question  thus 
open,  the  court,  in  The  People  v.  The  Judges,  fyc.,  felt  itself  at 
liberty  to  examine  it  anew  and  "  to  adopt  such  rule  as  it  should 
think  the  law  required." 

In  other  states,  the  power  has  been  maintained  with  the  same 
uniformity  and  distinctness.  "  In  Pennsylvania,"  says  Whar- 
ton,"  it  has  been  the  constant  and  unquestioned  practice  in  the 
court  to  exercise  the  right  of  granting  new  trials  in  criminal 
cases  after  conviction  of  every  grade."  (Wharton's  Am*  Cr. 


GREECE,  DECEMBER,   1854. 


The  People  v.  Morrison. 


Law,  2d  ed.  873.)  In  support  of  this  proposition  he  refers  to 
Com.  v.  O'Hara,  7  Smith's  Laws,  694;  Com.  v.  Brown,  3 
Rawle,  207;  Com.  v.  Green,  1  Jlshmead,  289;  Com.  v.  Murray, 
2  do.  41;  Com.  v.  Williams,  2  do.  69;  Com.  v.  Hanagan,  7  Watts 
fy  Serg.  415;  Com.  v.  Harman,  4  .Bar;1,  269;  Cow.  v.  Moslee, 
ibid,  264. 

In  JVew  Jersey,  new  trials  are  granted  upon  the  merits,  in 
criminal  cases,  even  by  courts  of  inferior  jurisdiction.  In  The 
State  v.  Parker,  (1  Halstead,  148,)  an  attempt  was  made,  as  in 
The  People  v.  The  Justices,  fyc.,  of  Chenango  (1  John.  Cases, 
179,)  to  compel  a  court  of  sessions  to  proceed  to  render  judg- 
ment upon  a  verdict  of  guilty,  notwithstanding  a  rule  for  a  new 
trial.  The  Supreme  Court  denied  the  motion  for  a  mandamus, 
on  the  ground  that  the  right  to  grant  a  new  trial  had  been  ex- 
ercised so  long,  that,  even  if  it  had  been  questionable  at  the 
first,  it  would  be  inexpedient  to  deny  it  now. 

"  In  Kentucky,"  says  M'Lean,  J.,  in  The  United  States  \. 
Keen,  (  1  M'Lean,  429,)  "  new  trials  are  often  granted  in  capital 
cases.  They  are  not  reported,  as  such  trials  take  place  in  the 
circuit  court,  and  the  right  in  the  court  to  set  aside  a  verdict 
of  guilty  seems  never  to  have  been  doubted.  And,  indeed,  this 
may  be  said  of  Ohio."  So,  also,  in  Indiana.  (See  Jerry  v.  The 
State,  1  Blackford,396-,  Weinzorpflin  v.  The  State,  7  Blackford, 
186.  In  Illinois:  See  Baxter  v.  The  People,  3  Oilman,  368; 
Holliday  v.  The  People,  4  do.  Ill;  Pate  v.  The  People,  3  do. 
644.)  In  the  latter  case,  the  defendant,  having  been  convicted 
of  forgery,  moved  for  a  new  trial,  on  the  ground  of  newly  dis- 
covered evidence,  and  also  because  the  verdict  was  against 
evidence,  and  the  circuit  court  having  denied  the  motion,  a 
writ  of  error  was  brought  to  the  Supreme  Court.  Treat,  J.,  in 
delivering  the  opinion  of  the  court,  said:  "In  criminal  cases, 
motions  for  new  trials  rest  entirely  in  the  discretion  of  the 
courts  where  they  are  made  and  the  propriety  of  their  decisions 
in  refusing  them  can  not  be  reviewed  in  this  court."  In  Iowa, 
it  has  been  held  that  it  is  the  duty  of  the  court  to  interfere  and 
grant  a  new  trial  where  it  thinks  manifest  injustice  will  be  done 
by  giving  effect  to  the  verdict;  that  the  application  for  a  new 


DECISIONS  IN    CRIMINAL  CASES. 


The  People  v.  Morrison. 


trial,  when  based  upon  the  facts,  is  addressed  to  the  sound  dis- 
cretion of  the  court.     (Cook  v.  United  States,  I  Green,  56.) 

In  Virginia,  the  question  was  thoroughly  examined  in  the 
case  of  Ball  v.  The  Commonwealth,  (8  Leigh.  726.)  The  pri- 
soner had  been  convicted  of  murder  in  the  second  degree.  A 
motion  for  a  new  trial  was  made  before  the  court  in  which  the 
trial  was  had,  but  the  judge,  being  of  opinion  that  the  power 
of  granting  a  new  trial  was  clearly  denied  by  the  principles 
and  practice  of  the  English  law,  and  was  not  warranted  by  any 
statute  of  Virginia,  or  the  authority  of  any  adjudicated  case, 
denied  the  motion.  The  case  having  been  brought  before  the 
General  Court,  upon  exceptions  to  the  opinion  of  the  court 
below,  the  judgment  was  unanimously  reversed  and  a  new  trial 
granted,  upon  the  ground  that  the  evidence  was  insufficient  to 
warrant  the  verdict  Fry,  J.,  in  delivering  the  opinion  of  the 
court,  said,  "Without  deciding  whether  it  is  proper  for  this 
court  to  review  the  judge's  opinion  of  the  evidence,  or  that  it 
was  proper  to  certify  the  fact,  we  proceed  to  inquire  whether  it 
is  ki  the  power  of  the  judge,  in  a  case  of  felony,  to  grant  a 
new  trial  after  conviction,  where  he  is  satisfied  that  the  evidence 
is  utterly  insufficient  to  warrant  the  finding.  Having  stated  the 
English  rule  that  a  new  trial  can  not  be  granted  in  any  case  of 
treason  or  felony,  he  asks,  "  Is  this  principle  a  part  of  the  com- 
mon law  with  us,  and  are  the  courts  of  this  state  bound  by  it? 
We  are  all  of  opinion  that  it  is  not,  and  that  our  courts  are  not 
bound  to  follow  it.  It  is  believed  that  a  contrary  practice  has 
long  prevailed  in  this  state;  many  new  trials  are  remembered 
by  some  of  the  judges,  and  we  think  this  practice  is  suitable  to 
our  constitution  and  laws  and  agreeable  to  justice  and  hu- 
manity." The  judge  who  had  decided  the  case  in  the  court 
below  concurred  in  the  judgment;  and,  in  a  later  case,  the  court 
said,  "Where  the  finding  of  the  jury  is  clearly  against  evidence, 
or  without  evidence  to  justify  it,  it  is  the  duty  of  the  court  to 
set  the  verdict  aside,  upon  the  application  of  the  prisoner,  and 
to  grant  a  new  trial.  (McClure  v.  Com.  2  Robinson,  790;  see 
also  Grayson  v.  Com.  6  Gratt,  712.) 

In  North  Carolina,  a  new  trial  was  granted  on  the  ground 


GREENE,  DECEMBER,   1854.  533 


The  People  v.  Morrison. 


of  newly  discovered  evidence  in  a  case  of  perjury  as  early  as 
1795,  (State  v.  Greenwood,  1  Hay,  141.)  "  Instances  of  new 
trials  for  felonies,  in  that  state,"  says  Wharton,  "  are  frequent, 
on  account  of  mistake  of  law  or  irregularity  in  trial."  (Set 
State  v.  Miller,  1  Dev.  if  Bat,  500;  State  v.  Barton,  2  do.  196; 
Stale  v.  Sparrow,  3  Murphy,  487;  State  v.  Lipsey,  3  Dev 
485.) 

In  South  Carolina,  a  new  trial  was  granted  in  a  capital  case 
in  1794,  in  a  court  in  which  Judge  Rutledge,  afterwards  chief 
justice  of  the  United  States,  presided.  It  is  true,  as  was  said 
by  Justice  Story,  in  The  United  States  v.  Gibert,  (2  Sumner, 
54,)  that  "  no  point  was  made  at  the  argument  as  to  the  power 
of  the  court  to  grant  a  new  trial,  and  that  it  was  silently  taken 
for  granted  on  all  sides."  But  it  is  also  true,  as  is  well 
remarked  by  Wharton,  that  "  the  precedent  has  since  been  ac- 
quiesced in  and  enforced  by  a  court,  the  learning  and  sagacity 
of  whose  judges  forbid  the  supposition  that  they  were  ignorant 
of  the  existence  of  the  English  practice  or  of  the  consequences 
of  overturning  it."  (Wharton's  Am.  Cr.  Law,  374;  see  State 
v.  Fisher,  2  JVbtt  &  McCord,  26;  State  v.  Lines,  2  Bailey,  29; 
State  v.  Anderson,  2  do.  565;  State  v.  Hooper,  2  do.  37.) 

In  Georgia,  the  right  of  the  presiding  judge  before  whom  a 
conviction  has  been  had,  to  entertain  a  motion  for  a  new  trial 
has  never  been  questioned.  When,  in  the  exercise  of  his  dis- 
cretion, he  has  denied  such  a  motion,  "  it  must  be  a  very  clear 
case  of  error  in  law,"  say  the  court,  in  Jones  v.  The  State,  ( 1 
Kelly,  610,)  "  or  a  very  naked,  bald  case  as  to  the  facts,  which 
will  authorize  the  court  to  control  that  discretion  in  a  criminal 
cause."  (See  also  McLane  v.  The  State,  4  Geo.  335;  Roberts  v. 
State,  3  Kelly,  310;  Giles  v.  State,  6  Georgia,  276;  .Alfred  v. 
The  Stale,  6  do.  483.) 

In  Tennessee,  new  trials  have  been  constantly  granted  in 
criminal  cases  when  the  verdict,  in  the  opinion  of  the  court,  is 
not  warranted  by  the  proof.  (Davis  v.  State.  2  Humph.  439; 
Kirby  v.  State,  3  do.  289;  Bedford  v.  The  State,  5  Humph.  552; 
Copeland  v.  State,  7  do.  479;  Cochran  v.  State,  7  do.  544;  so, 

VOL.  I.  80 


631 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Morrison. 


a/so,  in  Mississippi,  (see  Kethler  v.  State,  10  Sme.  #  Marsh. 
192.) 

In  Massachusetts,  the  question  was  thoroughly  examined  in 
the  case  of  The  Commonwealth  v.  Green,  (17  Mass.  514.)  The 
case  was  argued  for  the  commonwealth  by  both  the  solicitor 
general  and  the  attorney  general.  The  opinion  of  the  court 
was  pronounced  by  Ch.  J.  Parker.  His  conclusion  was,  that 
the  court  had  power  to  grant  a  new  trial  on  the  motion  of  one 
convicted  of  a  capital  offence,  sufficient  cause  being  shown 
therefor,  notwithstanding  the  superior  courts  were  supposed 
not  to  exercise  such  authority. 

In  Connecticut,  the  supreme  court,  in  granting  a  new  trial 
in  The  State  v.  Lyon,  (12  Conn.  487,)  which  was  a  case  of 
arson,  said  that  the  power  to  grant  a  new  trial  might  be  exer- 
cised, when  the  verdict  was  without  evidence,  or  was  manifest!) 
against  the  weight  of  evidence. 

In  New  Hampshire,  a  new  trial  was  granted  in  a  case  of 
murder.  (The  State  v.  Prescott,  7  JV.  Hamp.  2S7.)  The  court 
said,  "  No  question  of  the  right  of  the  court  to  grant  the  pri- 
soner a  new  trial  has  been  raised  upon  the  argument,  nor  have 
the  court  any  hesitation  upon  the  subject.  The  prisoner  was 
entitled  to  a  fair  and  impartial  trial,  and  if,  in  any  respect,  this 
right  has  not  been  secured  to  him,  God  forbid  that  he  should  be 
sent  to  pray  of  the  mercy  of  the  executive  a  pardon  for  an  of- 
fence of  which  he  has  not  been  legally  convicted.." 

In  Alabama,  in  a  case  which  came  before  the  court  upon  an 
application  for  a  new  trial  after  a  conviction  for  murder,  the 
opinion  of  Mr.  Justice  Story  was  relied  upon  in  opposition  to 
the  motion.  The  court,  after  referring  to  the  practice  of  the 
English  courts,  said,  "  It  does  not,  however,  follow  that  it  is 
against  the  principles  of  the  ancient  common  law  that  the  court 
should  have  power  to  grant  a  new  trial  where  a  doubt  exists  as 
to  the  correctness  of  the  verdict.  It  would  seem  to  be  more 
consistent  with  the  spirit  of  humanity  which  pervades  it,  that 
a  new  trial  should  be  granted  by  the  court,  than  that  the  pri- 
soner should  depend  on  the  mercy  of  the  executive."  (State  v. 
Slack,  6  Alabama,  676.) 


GREENE,  DECEMBER,  1854. 


The  People  v.  Morrison. 


Thus  it  appears  that  in  eighteen  states  the  power  to  grant 
new  trials  in  criminal  cases  has  been  asserted  and  maintained. 
I  have  not  had  access  to  the  reports  of  the  other  states,  but  I 
/iave  no  reason  to  believe  that  this  singular  uniformity  of  de- 
cision and  practice  has  been  departed  from,  in  a  single  instance, 
in  any  other  state. 

The  same  doctrine  is  held,  too,  in  the  federal  courts.  It  is 
true  that  in  The  United  States  v.  Gibert,  (2  Sumner,  19,)  Mr. 
Justice  Story  has  argued,  at  great  length,  to  show  that,  where 
a  trial  has  been  regularly  had,  before  a  court  of  competent 
jurisdiction,  upon  a  good  indictment,  and  a  verdict  has  been 
regularly  rendered  by  a  competent  jury,  the  party  can  not  be 
tried  a  second  time.  That  distinguished  judge  thought  the 
provision  of  the  constitution  which  adopts  the  maxim  of  the 
common  law  that  a  man  shall  not  be  twice  put  in  jeopardy  of 
life  or  limb  for  the  same  offence,  presented  an  insurmountable 
barrier  to  a  second  trial,  even  upon  the  application  of  the  de- 
fendant himself.  But,  in  the  same  case,  Judge  Davis,  though 
he  concurred  in  denying  a  new  trial  upon  the  merit,  dissented 
from  that  part  of  the  opinion  which  denied  the  power  to  grant 
a  new  trial  upon  the  merits.  He  was  of  opinion  that  the  pro- 
vision in  the  constitution  was  intended  for  the  security  and 
benefit  of  the  party  accused,  and  that,  as  such,  it  might  be 
waived.  One  of  the  most  eminent  lawyers  in  the  United  States 
has  denominated  this  opinion  of  Mr.  Justice  Story  as  "  an  extra 
julicial  dissertation  of  a  single  judge  which  has  caused  the 
whole  disturbance  of  our  criminal  system  in  this  matter."  And 
he  adds,  that  it  is  a  dissertation,  "  not  close  in  point  of  argu- 
ment, and  far  from  being  either  respectful  or  accurate  in  the 
consideration  of  authorities."  (  United  States  v.  Harding,  1 
Wallafe,  Jr.,  127,  per  David  Paul  Brown,  argue  ndo.)  In  the 
latter  case,  three  defendants  had  been  jointly  indicted  for  mur- 
der; one  had  been  convicted  of  murder,  and  the  other  two  of 
manslaughter.  They  all  applied  for  a  new  trial,  which  was 
granted,  although  the  effect  was  again  to  expose  them  all  to  a 
conviction  for  murder.  Kane,  district  judge,  delivered  the 
opinion  of  the  court.  In  noticing  the  opinion  of  Mr.  Justice 


DECISIONS  IN  CRIMINAL,  CASES. 


The  People  v.  Morrison. 


Story  on  the  question  he  said:  "  I  am  aware  tl  at  one  i  f  the 
most  eminent  of  our  jurists  has  found  an  inhibition  in  the  con- 
stitution against  the  grant  of  new  trials  in  cases  involving 
jeopardy  of  life.  But  I  can  no*  realize  the  correctness  of  the 
interpetration  which,  anxious  to  secure  a  citizen  against  the 
injustice  of  a  second  conviction,  requires  him  to  suffer  under  the 
injustice  of  the  first.  Certainly  I  would  not  subject  the  prisoner 
to  the  hazards  of  a  new  trial  without  his  consent.  If,  being 
capitally  convicted,  he  elects  to  undergo  the  sentence,  it  may  be 
his  right,  as  it  was  to  have  pleaded  guilty  to  the  indictment. 
When,  however,  he  asks  a  second  trial,  it  is  to  relieve  himself 
from  the  jeopardy  in  which  he  is  already,  and  it  is  no  new 
jeopardy  that  he  encounters  when  his  prayer  is  granted,  but  the 
same,  divested  of  the  imminent  certainty  of  its  fatal  issue." 
Again,  he  says:  "Within  the  limits  of  this  circuit  at  least,  from 
the  earliest  judicial  date  to  the  present  time,  there  has  been  no 
recorded  case  in  which  a  new  trial  has  been  refused  for  the 
want  of  authority  in  the  court  to  grant  it."  He  might  have 
safely  added,  I  think,  that  no  such  case  had  occurred  within  the 
courts  of  the  United  States,  for  the  case  of  The  People  v.  The 
Judges,  fyc.  (2  Barb.  282,)  had  not  then  been  decided.  It  is 
proper  to  state  that  Mr.  Justice  Grier,  of  the  Supreme  Co.  rt  of 
the  United  States,  concurred  in  the  opiflion  of  Judge  Kane,  in 
The  United  States  v.  Harding. 

In  a  case  which  occurred  in  the  same  district,  at  a  very  early 
period  in  the  judicial  records  of  the  country,  a  new  trial  was 
granted  in  a  case  after  a  conviction  for  treason,  Iredell,  then 
one  of  the  justices  of  the  Supreme  Court  of  the  United  States, 
presiding,  Rawles,  district  attorney  of  the  United  States,  and 
Sitgreaves  appeared  as  counsel  for  the  government.  They  con- 
ceded, in  arguing,  that  the  power  to  grant  a  new  trial  in  a 
capital  case  could  not  be  denied.  {United  States  v.  Fries,  3 
Dallas,  515.)  Judge  Story,  in  noticing  this  case,  admits  that 
it  is  an  authority  directly  in  point,  but  he  thinks  there  are  cir- 
cumstances in  the  case  \\hich  greatly  weaken  if  they  do  not 
impugn  its  authority.  "  The  clause  in  the  constitution  of  the 
United  States,"  he  says,  "was  not  even  alluded  to,  much  less 


GREENE,  DECEMBER,  1634.  537 

The  People  tr.  Morrison. 

reasoned  out.  The  court  did  not,  in  giving  their  judgment,  in 
any  manner  speak  to  the  point.  The  judges  were  divided  in 
opinion  as  to  the  propriety  of  granting  a  new  trial  for  the 
cause  shown,  but  Judge  Peters  yielded  and  acquiesced  in 
granting  the  new  trial.  Now,  under  such  circumstances,  it  is 
not  too  much  to  say,  that  the  court  might  have  been  surprised 
into  the  decision."  "  This,  truly,"  says  the  distinguished  coun- 
sel whose  name  I  have  already  mentioned,  "  is  to  make  trim 
reckoning  of  a  judicial  adjudication."  And  I  have  only  to  say, 
that,  if  in  1795,  judges  and  counsel  like  those  in  that  case — 
men,  all  of  them,  of  education  and  understanding,  bred  in  the 
apostolic  age  of  our  country,  and  breathing  the  air  of  the  con- 
stitution when  it  imparted  every  where  its  energy  and  spirit, 
could  not,  any  of  them,  see,  in  that  constitution,  aught  which 
touched  the  case  before  them,  then  that  no  such  thing  exited 
there;  or,  at  any  rate,  it  will  not  be  given  to  either  judge  or 
counsel  in  these  later  days  to  discover  it. 

Mr.  Justice  Story  himself,  in  the  following  year  after  the 
trial  for  piracy,  reported  in  The  United  States  v.  Gibert,  seems 
to  have  lost  sight  of  his  constitutional  impediment  in  the  way 
of  a  new  trial  in  criminal  cases,  for,  in  the  case  of  The  United 
States  v.  Battiste,  (2  Sumner,  240,)  when  arguing  against  the 
right  of  the  jury  to  determine  the  law  for  themselves,  he  says, 
"If  the  court  should  err,  in  laying  down  the  law  to  the  jury, 
there  is  an  adequate  remedy  for  the  injured  party,  by  a  motion 
for  a  new  trial,  or  a  writ  of  error,  as  the  nature  of  the  juris- 
diction of  the  court  may  require."  Now,  if,  as  the  learned 
judge  had  so  earnestly  contended,  in  The  United  States  v.  Gt- 
bert,  the  constitution  when  it  declares  that  no  person  shall  be 
subject,  for  the  same  offence,  to  be  twice  put  in  jeopardy  of  life 
or  limb,  means  "  that  no  person  shall  be  tried  a  second  time  for 
the  same  offence,  where  a  verdict  has  already  been  given  by  a 
jury,"  how  could  he  say,  as  he  did  in  The  United  States  v 
Battiste,  that  if  the  court  should  err,  in  laying  down  the  law  to 
the  jury,  there  was  an  adequate  remedy  for  the  injured  party, 
by  a  motion  for  a  new  trial,  or  a  writ  of  error? 

In  The  United  States  v.  Keen,  (1  M'Lean,  429,)  Mr.  Justice 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Morrison. 


M'Lean  Las  most  emphatically  repudiated  the  construction  of 
the  constitution  for  which  Mr.  Justice  Story  so  earnestly  con- 
tends: "  In  favor  of  life,"  he  says,  "  presumptions  arise  which 
seem  to  relax,  and  in  fact  sometimes  do  relax  the  rigor  of  the 
law.  But,  in  the  construction  contended  for,  this  maxim  is 
reversed.  The  prisoner  is  found  guilty  by  the  jury,  and,  whe- 
ther right  or  wrong,  he  must  stand  convicted.  He  claims,  un- 
der the  constitution,  a  fair  and  impartial  trial,  and  he  shows 
gross  prejudices  against  him  by  the  jury  who  have  convicted 
him  on  testimony  wholly  insufficent.  But  he  is  answered  that 
the  constitution  protects  him  from  being  put  in  jeopardy  a  se- 
cond time  for  the  same  offence,  and  that  a  new  trial  would  vio- 
late this  provision.  In  other  words,  the  constitution  guarantees 
to  him  the  right  of  being  hung  to  protect  him  from  the  danger 
of  a^pecond  trial.  Whatever  may  be  said,  theoretically,  of  such 
a  constitutional  protection,  practically,  the  subject  of  it  can 
have  no  very  strong  reason  to  appreciate  it."  In  The  United 
States  v.  Conner,  (3  M'Lean,  573,)  the  same  judge  granted  a 
new  trial  in  a  case  of  perjury.  The  motion  was  opposed  on  the 
ground  that  the  circuit  judge  had  no  power  to  grant  a  new  trial 
in  such  a  case,  but  the  court  said  the  question  had  been  con- 
sidered and  decided,  and  would  not  again  be  examined;  that 
there  could  be  no  doubt  that  the  court  might,  on  cause  shown, 
grant  a  new  trial  in  any  criminal  case. 

Indeed,  upon  the  question  of  constitutional  construction,  Mr. 
Justice  Story  stands  alone.  Not  a  judge  of  any  court  in  the 
United  States  has  been  found  to  concur  in  his  views.  Even 
Mr.  Justice  Strong,  while  he  denies  the  power  of  the  court  to 
grant  a  new  trial,  does  not  venture  to  put  his  judgment  upon 
the  ground  of  constitutional  prohibition.  Our  slate  constitution, 
like  that  of  the  United  States,  declares  that  "  no  person  shall  be 
subject  to  be  twice  put  in  jeopardy  for  the  same  offence.  (Const, 
of  1847,  Article  1,  §6.)  Mr.  Justice  Strong,  like  every  body 
else,  except  Judge  Story,  regards  this  provision  as  applicable  to 
a  case  of  acquittal.  "  If  the  accused  is  acquitted,"  he  says, 
"however  conducive  the  evidence  may  have  been  against  him, 
the  public  are  precluded,  by  a  provision  of  the  constitution 


GREENE,  DECEMBIR,  1854.  539 

The  People  v.  Morrison. 

from  obtaining  a  new  trial.  Were  it  otherwise — if  the  consti- 
tution of  the  United  States,  or  of  this  state,  is  to  be  regarded 
as  prohibiting  a  new  trial,  whether  the  accused  is  acquitted  or 
convicted — it  is  obvious  that  the  provisions  of  the  revised  sta- 
tutes authorizing  the  Supreme  Court  to  review  the  decisions  of 
a  court  of  General  Sessions  or  Oyc.r  and  Terminer,  upon  a  bill 
of  exceptions,  are  in  conflict  with  this  inhibition,  and  should  be 
declared  void.  I  presume  no  one  wo  lid  be  found  with  sufficient 
courage  to  maintain  such  a  proposition. 

Mr.  Justice  Strong,  in  the  case  of  The  People  v.  The  Judges 
of  the  Dutchess  Oyer  and  Terminer,  has  drawn  an  argument 
against  the  power  of  the  court  to  grant  a  new  trial,  from  the 
fact  that  the  legislature  has  seen  fit  to  confer  that  power  upon 
the  Supreme  Court,  in  certain  cases,  and  omitted  to  grant  it  "in 
any  other  case  or  to  any  other  court."  His  inference  is,  that 
the  legislature  intended  "  to  adhere,  in  all  other  respects,  to  the 
common  law  rule."  But  I  can  not  subscribe  to  the  soundness 
of  this  argument.  I  deny  that  the  inference  is  legitimate. 
When  the  provisions  of  the  revised  statutes  were  adopted,  the 
power  oi  the  American  courts  to  grant  new  trials  in  criminal 
cases  had  never  been  denied.  It  needed  no  legislative  enact- 
ment to  justify  them  in  exercising  this  undisputed  right.  Courts 
proceeding  according  to  the  course  of  the  common  law,  had 
been  in  the  practice  of  granting  new  trials  upon  the  merits, 
both  in  civil  and  criminal  cases,  as  a  necessary  incident  of  their 
jurisdiction.  But,  as  it  had  been  found  inexpedient  to  provide 
for  a  review  of  the  decisions  of  the  court  exercising  original 
jurisdiction  upon  questions  of  law  in  civil  cases,  so  also  it  was 
thought  that  the  protection  of  the  rights  of  the  citizen  required 
that  he  should  not  be  concluded  by  the  law  as  declared  by  the 
court  in  which  he  had  been  tried,  but  that  he  might  have  a 
review  upon  exceptions  and  writ  of  error.  It  was  a  privilege 
to  the  party  who  had  been  convicted,  superadded  to  the  right 
he  before  possessed  of  applying  to  the  court  in  which  he  had 
been  tried  for  a  new  trial  upon  the  merits. 

I  do  act  deem  it  very  important  to  determine  whether  a  court 
of  Oyer  and  Terminer  should  be  regarded  as  an  inferior  or  a 


640  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Morrison. 

superior  court,  or  whether  or  not  it  is  a  court  of  general  juris- 
diction. I  do  not  perceive  how  this  question  involves  the  power 
to  grant  a  new  trial.  It  certainly  has  power  "  to  hear  and  de- 
termine all  crimes  and  misdemeanors."  It  is  the  only  court  of 
original  criminal  jurisdiction  that  possesses  such  power.  If  a 
court  is  to  be  classified  as  superior,  when  there  is  no  court  of  a 
higher  grade  of  kindred  jurisdiction,  then  the  Oyer  and  Term- 
iner  is  a  superior  courf.  There  is  no  court  above  it  exercising 
original  criminal  jurisdiction;  nor  can  this  question  be  affected 
by  the  fact  that  a  judge  of  the  Supreme  Court,  who  is  also  a 
judge  of  the  Oyer  and  Terminer,  may  by  allowing  a  certiorari 
transfer  the  trial  from  the  Oyer  and  Terminer  to  the  Supreme 
Court.  All  that  this  proves  is,  that  after  the  criminal  action 
has  been  instituted,  another  court  has  concurrent  jurisdiction 
with  the  Oyer  and  Terminer  to  try  the  issue  and  render  judg- 
ment. 

Nor  can  I  see  that  the  question  is  much  affected  by  the  fact 
that  the  Oyer  and  Terminer  is  limited  in  its  jurisdiction  to 
crimes  and  misdemeanors  committed  within  the  county  where 
it  is  held.  The  Supreme  Court  is  undeniably  a  superior  court 
of  general  jurisdiction,  and  yet  the  court  in  which  Mr.  Justice 
Strong  sat  when  he  laid  down  the  rule  that  "  a  superior  court 
of  general  jurisdiction  must  have  full  cognizance  of  one  at  least 
of  the  principal  departments  of  the  law  throughout  the  state, 
had  not  such  full  cognizance.  It  had  no  jurisdiction  over  any 
matter  or  proceeding  pending  without  the  limits  of  the  second 
judicial  district.  This  fact,  however,  does  not  tend  to  show 
that  the  learned  judge  was  not  then  presiding  in  a  superior 
court  of  general  jurisdiction.  He  was.  The  court  was  not  the 
less  a  court  of  general  jurisdiction,  because,  in  territorial  ex- 
tent, its  jurisdiction  was  not  coextensive  with  the  state. 

Upon  authority,  I  regard  the  power  of  the  court  to  grant 
a  new  trial  as  established  beyond  all  possible  controversy.  But 
if  the  adjudged  cases  had  been  found  conflicting  to  such  an 
extent  as  to  require  that  general  principles  should  be  resorted 
to,  I  should  have  no  hesitation  in  pronouncing  in  favor  of  the 
power.  Where  the  court  is  satisfied  that  injustice  has  been  done 


GREENE,  DECEMBER,  1354. 


The  People  v.  Morrison. 


upon  the  trial  of  a  civil  action,  it  will  not  hesitate  to  set  aside 
the  verdict  and  order  a  retrial.  The  most  obvious  principles 
of  common  justice  require  it.  If  this  should  be  done  when  the 
action  only  involves  the  right  to  land  or  money,  how  much  more 
when  liberty  or  life  itself  is  at  stake?  To  refuse,  in  such  cases, 
to  allow  the  defendant  the  benefit  of  the  same  principles  which 
are  applied  in  civil  actions,  is  to  deprive  him  of  a  legal  right; 
to  deny  him  a  fair  and  impartial  trial.  It  is  but  a  pitiful  sub- 
stitute for  the  court,  conscious  as  it  may  be  that  great  injustice 
has  been  done  by  the  verdict,  to  say  to  the  accused  that  he  can 
not  have  a  new  trial,  however  well  he  may  be  entitled  to  it, 
but  that  he  must  apply  to  the  executive  for  pardon,  adding, 
perhaps,'  in  the  language  of  Mr.  Justice  Story,  that  the  court,  if 
conscious  of  any  serious  error,  would  cheerfully  aid  in  the  ap- 
plication." To  address  language  like  this  to  a  man  unjustly 
convicted  would  seem  like  mockery  of  his  wrong. 

But  suppose  that  even  though  the  court,  "conscious  of  serious 
error,"  should  "  aid  in  the  application,"  the  executive  should 
refuse  to  pardon?  Is  the  prisoner,  though  unfairly  tried,  and 
perhaps  innocent,  to  be  hung?  Is  he,  though  it  is  seen  that  he 
has  been  convicted  through  the  mistake  or  misapprehension  of 
the  jury,  or  perhaps  under  the  influence  of  passion  or  prejudice, 
to  endure  the  penalty  of  crime  without  redress?  It  may  be  said 
that  I  am  supposing  an  extreme  case.  This  may  be  so.  It  is 
undoubtedly  a  rare  thing  for  a  jury  to  convict  against  the 
weight  of  evidence.  Mr.  Justice  Strong  says,  in  the  opinion  to 
which  I  have  already  had  occasion  to  refer,  that  in  a  practice  of 
twenty  years  as  public  prosecutor,  he  did  not  recollect  an  in- 
stance. It  is  possible  that  the  learned  judge  might  have 
thought  otherwise,  had  he  looked  on  from  a  different  point  of 
observation.  It  will  be  admitted  that  such  cases  may  happen, 
and  this  is  enough  for  my  purpose;  upon  such  a  question  ex- 
treme cases  may  well  be  supposed.  Again,  I  ask,  what  is  to 
be  done  where  such  a  case  does  happen?  The  court  believe  the 
accused  innocent,  and  yet  the  jury  have  pronounced  him  guilty. 
The  executive  certainly  is  not  bound  to  interpose  for  the  relief 
of  the  court.  Its  office  is,  not  to  reverse  unjust  decisions,  but 

VOL.  I.  81 


642 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  t».  Morrison. 


to  remit  punishment  due  to  the  guilty.  The  very  idea  ofm-ercy 
implies  guilt.  An  innocent  man  needs  no  mercy  Let  him  but 
have  justice  and  he  is  safe.  A  pardon,  therefore,  is  not  the 
appropriate  remedy  for  an  erroneous  or  unjust  conviction. 
Justice  can  only  be  effected  by  granting  a  new  trial.  The 
power  to  set  aside  such  a  conviction  is,  therefore,  indis- 
pensable. 

The  question  whether  a  motion  for  a  new  trial  in  criminal 
cases  ought  not  to  be  entertained  has  become  the  subject  of 
discussion  even  in  England.  Commissioners  appointed  to  revise 
the  criminal  laws,  in  a  report  recently  made  to  parliament,  an 
extract  from  which  may  be  found  in  Waterman's  edition  of 
Archbold's  Pleadings,  (vol.  1,  page  177,  note,)  have  expressed 
a  decided  opinion  in  favor  of  a  modification  of  the  existing  law 
on  this  subject.  "  It  appears  to  us,"  they  say,  "  that  the  law  of 
England  is  at  present  very  defective  as  regards  the  means  af- 
forded for  the  correction  of  errors  in  criminal  proceedings. 
And  especially  such  as  are  frequently,  and  indeed  are  almost 
necessarily  incident  to  the  trial  by  jury.  In  this  respect,  indeed, 
the  law  is  inconsistent  in  entertaining  the  motion  for  a  new 
trial  in  some  instances,  and  denying  it  to  others,  without  any 
adequate  reason  for  the  distinction,  and  is  thus  faulty,  either  in 
denying  a  new  trial  where  it  would  be  consistent  with  justice 
to  grant  one,  or  in  granting  a  new  trial  where  it  ought  properly 
to  be  withheld.  We  can  not  but  observe  that  the  distinction 
made  between  indictments  for  felony,  and  those  for  misde- 
meanor, is  one  not  warranted  by  any  intelligent  principle." 

Again  they  say:  "Looking  at  the  nature  of  the  inquiry,  it  is 
quite  as  likely  that  error  or  mistake  should  occur  in  the  in- 
vestigation on  a  criminal  charge,  as  on  that  of  a  mere  civil  claim. 
As  regards  the  consequences  of  error  in  the  one  case  and  the 
other,  it  can  not  be  denied  that  a  failure  of  justice  in  a  criminal 
case,  where  it  may  concern  not  only  property,  liberty,  but  even 
life  itself,  is  of  much  more  serious  importance  than  in  civil 
cases,  where  a  mere  question  of  property  is  concerned.  The 
law  in  this  respect  is  at  variance  with  itself,  and  several  evil 
consequences  naturally  result.  Great  'njusti'  1 1.-  often  done  to 


GREENE.  DECEMBER,   1854. 


The  People  ».  Morrison. 


an  innocent  party  who,  but  for  the  technical  rule,  would  entitle 
himself  to  a  new  trial,  for  it  can  not  be  doubted  that  cases  not 
unfrequently  occur,  when  the  convict  is  either  altogether  inno- 
cent or  not  guilty  of  the  aggravated  offence  charged." 

Convinced  as  I  am  that  the  inconsistency  of  which  these 
commissioners  complain  never  found  its  way  into  the  criminal 
jurisprudence  of  the  United  States,  and  that  the  power  to  grant 
a  new  trial  for  the  purpose  of  correcting  errors  or  mistakes 
either  of  the  court  or  jury,  is  as  clear  and  undoubted  in  criminal 
cases  as  it  is  acknowledged  to  be  in  civil  actions,  it  is  only 
necessary  to  inquire  whether  we  have  before  us  a  proper  case 
for  the  exercise  of  that  power. 

Both  parties  to  the  transaction  were  respectable.  The  de- 
fendant at  the  time  of  the  trial  was  supervisor  of  the  town  in 
which  he  resided,  and  the  father  of  the  prosecutrix  was  a  ma- 
gistrate of  the  same  town.  The  prosecutrix  herself,  at  the  time 
of  the  alleged  offence,  was  but  sixteen  years  old  and  the  defend- 
ant about  twenty-five.  They  had  attended  a  party  at  the  house 
of  a  neighbor,  and  the  prosecutrix,  upon  the  invitation  of  the 
defendant,  rode  home  with  him  on  horseback.  The  house  of 
her  father  stands  some  fourteen  rods  from  the  road.  The  pro- 
secutrix testified  that  when  they  reached  the  gate  or  bars  the 
defendant  hitched  his  horse,  and  they  went  towards  the  house 
together,  the  defendant  having  his  arm  around  her  waist;  that 
after  they  had  proceeded  a  short  distance,  the  defendant  pro- 
posed to  her  to  go  aside  from  the  path,  but  she  declined,  saying 
she  was  going  to  the  house;  that  h^.  then  pulled  her  a  few  steps 
aside  from  the  path,  and,  with  his  arms  around  her  waist,  laid 
her  upon  the  ground,  and  then  had  connection  with  her.  She 
made  no  outcry,  nor  did  she  pretend  that  she  made  any  resist- 
ance. She  stated  that  she  told  him  to  let  her  go,  and  that  she 
tried  to  get  away;  that  after  he  had  raised  her  clothes  and  lay 
upon  her  person,  he  put  his  mouth  upon  hers;  that  she  made  no 
outcry  before  he  did  this,  but  she  did  halloo  once  before  she  left 
the  ground;  that  she  was  not  upon  the  ground  to  exceed  a 
minute.  The  prosecutrix  was  herself  a  strong,  healthy  girl. 
The  family,  consisting  of  her  father,  two  brothers,  and  a  la;l 


644 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Morrison. 


Sixteen  years  old,  together  with  several  females,  were  m  the 
house  at  the  time.  They  were  in  the  front  part  of  the  house 
where  a  light  was  burning. 

To  constitute  the  crime  for  which  the  defendant  was  tried, 
there  must  be  an  unlawful  and  carnal  knowledge  of  a  woman 
by  force  and  against  her  will.  There  must  be  "  the  utmost 
reluctance  and  the  utmost  resistance.  It  was  well  said  by 
Cowen,  J.,  in  The  People  v.  Abbott,  (19  Wend.  192),  "  a  mixed 
case  will  not  do.  The  connection  must  be  absolutely  against 
the  will."  In  this  case  there  was  no  great  inequality  of  strength 
between  the  parties.  The  prosecutrix,  if  she  was  the  weaker 
party,  was  bound  to  resist  to  the  utmost.  Nature  had  given  her 
feet  and  hands  with  which  she  could  kick  and  strike,  teeth  to 
bite  and  a  voice  to  cry  out;  all  these  should  have  been  put  in 
requisition  in  defence  of  her  chastity.  I  can  not  see  that  any 
thing  like  this  was  done.  The  girl  herself  does  not  pretend 
that  she  made  any  physical  resistance,  and,  according  to  her 
own  account,  the  only  outcry  she  ma-de  was  after  the  offence 
had  been  committed.  No  marks  of  violence  were  left  upon  her 
person,  and  she  did  not  disclose  what  had  occurred  until  several 
days  after.  It  was  proved,  too,  on  the  part  of  the  defence,  that 
the  sister  to  whom  she  made  the  disclosure,  had  said  that  she 
did  not  suppose  that  the  prosecutrix  would  ever  have  told  what 
had  happened  if  she  had  supposed  the  defendant  could  be  hurt 
for  it.  Upon  a  state  of  facts  like  this,  I  can  not  concur  with 
the  jury  in  pronouncing  the  defendant  guilty  of  a  rape.  He 
may,  indeed,  be  guilty  of  seduction,  an  offence  kindred  in  mo- 
rals, but  by  no  means  the  same  in  law.  The  verdict  is  not  sus- 
tained by  the  evidence,  and  a  new  trial  must  be  granted. 


COLUMBIA,  JANUARY    1S'>5. 


COLUMBIA  OYER  AND  TERMINER.  January  1855.  Before  Parkert 
Justice  of  the  Supreme  Court,  and  the  Justices  of  the  Sessions. 

^THE  PEOPLE  vs.  GEORGE  C.-ESAR. 

Form  of  an  indictment  for  petit  larceny  charged  as  a  second  offence. 

The  statute  declaring  a  second  offence  of  petit  larceny  to  be  punishable  in  the 
state  prison,  is  not  applicable  to  a  case  in  which  the  first  conviction  took 
place  in  another  state. 

And  where  a  defendant  pleaded  guilty  to  an  indictment  charging  petit  larceny 
as  a  second  offence,  and  it  appeared  by  the  indictment,  that  the  first  offence 
was  committed  and  the  first  conviction  had  in  the  state  of  Massachusetts 
it  was  held  that  the  defendant  could  only  be  punished  for  simple  larceny. 

The  prisoner  was  indicted  for  petit  larceny,  as  a  second 
offence,  in  the  following  form: 

State  of  New  York,  Columbia  County,  ss:  The  jurors  of  the 
people  of  the  state  of  New  York,  in  and  for  the  body  of  the 
county  of  Columbia,  upon  their  oath  and  affirmation  do  present, 
that  at  the  court  of  common  pleas  begun  and  holden  at  Lenox 
within  and  for  the  county  of  Berkshire  in  the  commonwealth 
of  Massachusetts,  on  the  first  Monday  of  January  in  the  year 
1853,  George  Caesar  was  indicted  for  that  at  Richmond  in  the 
said  county  of  Berkshire,  on  the  seventh  day  of  August  then 
last  past,  in  a  certain  building  then  and  there  called  and  being 
a  dwelling  house  of  one  Mary  Van  Buren,  there  situate,  then 
and  there  in  the  said  building,  one  pair  of  pantaloons  of  the 
value  of  five  dollars,  the  proper  goods  and  chattels  of  one  Charles 
M.  Van  Buren,  and  one  cloth  cap  of  the  value  of  fifty  cents, 
and  one  gun  of  the  value  of  ten  dollars,  of  the  goods  and  chat- 
tels of  one  George  Albert  Van  Buren,  all  in  the  said  building, 
then  and  there  being  found,  then  and  there  feloniously  did  steal, 
take  and  carry  away,  against  the  peace  of  the  commonwealth 
of  Massachusetts,  and  contrary  to  the  form  of  the  statute  of  the 
said  commonwealth  in  such  case  made  and  provided,  whereupon 
such  proceedings  were  had  in  due  form  of  law,  at  the  said 
January  term  of  the  said  court,  that  the  said  George  Caesar 
was  convicted  of  the  offence  above  set  forth  whereof  he  was 


646  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t;.  Ccesar. 

indicted  as  aforesaid,  and  the  said  court  thereupon  considered, 
ordered  and  adjudged  that  the  said  George  Caesar,  convicted 
of  the  offence  aforesaid,  be  confined  to  hard  labor  in  the  house 
of  correction,  within  the  county  of  Berkshire  aforesaid,  for  the 
term  of  eighteen  months,  and  that  he  stand  committed,  accord- 
ing to  said  sentence,  and  the  said  George  Caesar  was  so  sen- 
tenced at  the  said  term  «f  the  said  court  on  the  tenth  day  of 
January,  1853;  the  said  court  then  and  there  at  the  times  afore- 
said, having  full  power,  jurisdiction  and  authority  in  the  pre- 
mises. And  the  jurors  aforesaid  upon  their  oath  and  affirma- 
tion aforesaid,  do  further  present  that  the  said  George  Caesur, 
late  of  the  town  of  Canaan  in  the  county  of  Columbia  and  state 
of  New  York,  being  the  same  George  Caesar  who  was  convicted 
and  sentenced  as  aforesaid  of  petit  larceny,  after  the  said  con- 
viction and  sentence  and  after  having  been  discharged  from  the 
said  conviction  and  sentence,  to  wit,  on  the  27th  clay  of  Decem- 
ber, 1854,  at  the  town  of  Canaan,  in  the  county  of  Columbia  and 
state  of  New  York,  with  force  and  arms  three  cotton  shirts  of 
the  value  of  fifty  cents  each,  one  skirt  of  the  value  of  one  dollar 
and  fifty  cents,  one  table  cloth  of  the  value  of  fifty  cents,  six 
pillow  cases  of  the  value  of  twenty-five  cents,  the  goods,  chat- 
tels and  property  of  Alonzo  Lockwood,  then  and  there  being 
found,  did  then  and  there  feloniously  steal,  take  end  carry  away 
against  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  of  the  people  of  the  state  of  New  York, 
and  their  dignity. 

WILLIAM  A.  PORTER, 
District  Attorney. 

To  this  indictment  the  prisoner  pleaded  guilty.  In  deciding 
upon  the  punishment  to  be  inflicted,  it  became  necessary  to 
determine  whether  the  case  came  within  the  9th  section  of  2 
R.  S.  699,  by  which,  on  conviction  of  petit  larceny,  after  a 
former  conviction  for  a  like  offence,  a  person  must  be  sentenced 
to  imprisonment  in  the  state  prison,  or  whether  the  prisoner 
could  only  be  punished  for  simple  petit  larceny,  under  §  1  of  2 
R.  S  690. 


COLUMBIA,  JANUARY,  1835. 


The  People.  0.  Caesar. 


After  taking  time  to  examine  the  question,  the  presiding 
judge  delivered  the  following  opinion: 

PARKER,  J.  —  Before  passing  sentence  in  this  case,  it  is  ne- 
cessary to  decide  whether  the  prisoner  can  be  punished  for  petit 
larceny  as  a  second  offence,  where  the  first  larceny  was  committed 
and  the  first  conviction  took  place  in  the  state  of  Massachusetts. 

The  statute,  under  which  the  prisoner  is  indicted,  is  expressed 
in  very  general  language,  and  is  not,  in  terms,  confined  to  a 
first  conviction  in  this  state.  (2  R.  S.  699,  §  9.)  It  provides 
that  every  person  having  been  convicted  of  petit  larceny,  &c., 
who  shall  be  subsequently  convicted  of  petit  larceny,  &c.,  shall 
je  sentenced  to  imprisonment  in  the  state  prison  for  a  term  not 
exceeding  five  years.  Although  this  expression  is  broad  enough 
to  apply  to  cases  where  the  first  conviction  took  place  in  another 
state,  yet  I  think  no  such  meaning  was  intended  by  the  legis- 
lature. Crimes  are  local.  We  have  no  cognizance  of  crimes 
committed  in  another  state  or  country.  Each  state  exercises 
exclusive  jurisdiction  over  all  cases  of  crime  committed  within 
its  limits.  In  this  respect  the  different  states  of  the  union  stand 
in  the  same  relation  to  each  other  as  foreign  states.  (Com.  \. 
Green,  17  Mass.  #.514;  Clark's  Lessee  v.  Hall,  2  Harris  #  Me* 
Hen.  378;  Cole's  Lessees  v.  Cole,  1  Harris  fy  John.  378;  3 
Hawks  Rep.  393;  Com.  v.  Knapp,  9  Pick.  R.  496,  512;  2  Cow 
4r  Hill's  Notes,  890.)  And  the  better  opinion,  as  drawn  from 
these  cases,  seems  to  be  that  a  conviction  in  one  state  of  an 
infamous  crime,  does  not  render  the  person  convicted  incompe- 
tent as  a  witness  in  another  state,  but  goes  only  to  his  credi- 
bility. 

The  penal  statutes  of  each  state,  therefore,  must  be  construed 
as  being  applicable  only  to  offences  committed  within  its  own 
borders,  unless  it  appear  affirmatively  that  the  intention  was 
otherwise. 

In  regard  to  felonies,  there  is  an  express  provision,  but  none 
applicable  to  the  lesser  offences.  Section  10  of  the  statute 
above  cited  provides  that  every  person  who  shall  have  been 
convicted  in  any  of  the  United  States,  or  in  any  district  or  ter« 


648 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Caesar. 


ritory  thereof,  or  in  any  foreign  country,  of  an  offence,  which, 
if  committed  within  this  state,  would  be  punishable  by  the  laws 
of  this  state  by  imprisonment  in  a  state  prison,  shall,  upon 
conviction  for  any  subsequent  offence  committed  within  this 
state,  be  subject  to  the  punishment  herein  prescribed  upon  sub- 
sequent convictions,  in  the  same  manner  and  to  the  same  extent 
as  if  such  first  conviction  had  taken  place  in  a  court  of  this 
state.  The  adoption  of  this  express  provision  is  satisfactory 
evidence  of  its  necessity;  and  its  history  shows  that  it  was 
never  supposed  that  increased  punishment  could  be  inflicted  in 
such  cases,  without  it.  The  first  special  legislation  on  this 
subject  took  place  in  1823,  (Sess.  Laws,  of  1823,  p.  179,  §  6,) 
and  that  was  only  applicable  to  cases  where  the  first  offence, 
being  a  felony,  took  place  in  some  one  of  the  United  States. 
At  the  revision,  this  provision  was  extended  to  territories  and  to 
foreign  countries,  the  revisers,  who  recommended  such  extension, 
saying,  as  a  reason,  "  wt5  are  more  exposed  in  this  state  to  fugi- 
tives from  Canada,  than  from  other  states."  (3  R.  S  3d  ed. 
834). 

The  legislature,  without  doubt,  has  the  power  to  inflict  an 
increased  punishment  where  the  first  offence  took  place  in  a 
foreign  country,  as  well  as  where  it  took  place  in  our  own 
state,  not  because  it  has,  or  can  give  to  the  courts  any  jurisdic- 
tion over  offences  committed  in  a  foreign  state  or  country,  but 
because  it  has  full  power  over  the  offence  committed  here,  and 
may  mete  out  such  punishment  as  the  moral  delinquency  of  the 
offender  may  seem  to  require.  The  first  offence,  though  com- 
mitted beyond  our  jurisdiction,  may  furnish  a  good  reason  for 
punishing  the  second  offence  committed  within  it,  to  an  extent 
commensurate  with  the  guilty  character  of  the  culprit  and  suffi- 
cient to  protect  the  community  against  further  depredation. 

But  the  legislature  has  thought  proper  to  authorize  an  in- 
creased punishment  for  a  second  offence,  when  the  first  offence 
was  committed  in  another  state,  only  in  cases  where  such  first 
offence  if  committed  here  would  have  been  deemed  a  felony 
under  our  Revised  Statutes,  that  is  to  say,  an  offence  punishable 
in  a  state  prison;  and  the  first  offence  in  this  case  not  having 


HENSSELAER,  MAY,  1854,  549 

The  People  v.  Robinson. 

been  of  that  grade,  no  punishment  can  be  inflicted  for  the  petit 
larceny  committed  here  beyond  what  belongs  to  a  first  convic- 
tion. The  prisoner  will  therefore  be  punished  for  simple  petit 
larceny. 

The  prisoner  was  then  sentenced  to  imprisonment  at  hard 
labor  in  the  county  jail  for  six  months,  with  a  view  to  his 
removal,  under  the  statute,  to  the  Albany  penitentiary. 


RENSSELAER  OYER  AND  TERMINER.     May  1854.     Before 

Justice  of  the  Supreme  Court  and  the  Justices  of  the  Ses 
sions. 

THE  PEOPLE  vs.  HENRIETTA  ROBINSON. 

It  is  no  defence  to  an  indictment  for  murder,  that  the  prisoner  was  intoxicated 

at  the  time  of  the  commission  of  the  offence.     The  law  holds  a   person  re- 

sponsible for  a  criminal  act,  though,  at  the  time,  he  was  intoxicated  to  such 

an  extent  as  to  be  unconscious  of  what  he  was  doing.(o) 
Where  insanity  is  interposed  as  a  defence  ,  its  evidence  must  be  established  by 

affirmative  proof,  every  person  being  presumed  to  be  sane  till  the  contrary 

is  proved. 
The  existence  or  want  of  motive   to  commit  the  crime  alleged  is  always  a 

legitimate  subject  of  inquiry.  The  weight  to  which  such  evidence  is  entitled 

•in  different  cases  stated  and  discussed. 

The  prisoner  had  been  indicted  for  the  murder  of  Timothy 
Lanagan  by  poison,  and  pleaded  not  guilty.  The  cause  was 
brought  to  trial  at  the  Oyer  and  Terminer  held  at  Troy  in  the 
county  of  Rensselaer,  in  May,  1854.  The  facts  of  the  case,  as 
proved  on  the  trial,  are  sufficiently  stated  in  the  charge  to  the 


R.  J3.  Lottridge,  (Dist.  Att'y,)  and 
H.  Hogeboom,  for  the  People 

••\!   •  :••  -<ii.>,   .1  i    a  >    i!  ...•,-'    .-•  >  •  - 

(a)  See  Rex  r.  Patrick,  7  Carr.  &  P.  145;  McDonough's  Case,  Ryan's  Med. 

J.  294;  1  Beck,  Med.  J.  627;  U.  S.  ».  Drew,  5  Mason,  28.  Jllittr  in  Peno. 
Com.  v.  Dunlap,  Lewis,  Cr.  L.  394,  405. 

VOL.  I.  82 


650  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Robinson. 

Wm.  Jl.  Beach,  M.  I.  Townsend  and  Job  Pierson,  for  the  pri- 
soner. 

At  the  close  of  the  trial  the  following  charge  was  delivered 
to  the  jury  by  thje  presiding  judge: 

Gentlemen  of  the  Jury;  The  scene  which  during  the  week 
has  occupied  your  attention  with  such  painful  interest,  is  at 
length  drawing  to  a  close.  Happily,  it  is  rare  that  the  citizen 
in  the  discharge  of  the  duties  which  he  owes  to  the  government 
under  which  he  lives,  is  called  upon  to  act  under  responsibili- 
ties like  those  which  devolve  upon  you.  It  is  but  once,  per- 
haps, in  the  course  of  a  man's  life,  that  he  is  called  upon  to 
decide  the  fate  for  life  or  death,  of  a  fellow  being,  when,  in  the 
impressive  language  of  the  ceremony  which  initiated  you  into 
your  office  as  jurors,  the  life  of  a  fellow  creature  is  given  in 
charge  to  twelve  men.  The  prerogative  to  determine  life 
belongs  to  the  source  of  life  itself.  It  is  the  highest  power 
that  man,  himself  the  subject  of  mortality,  can  exercise,  to  as- 
sume this  prerogative  and  declare  the  life  of  his  fellow  man 
forfeited.  This  fearful  responsibility  rests  upon  you.  When 
you  entered  that  sacred  place,  you,  each  for  himself,  took  a  vow 
upon  yourselves  that  you  would  render  a  true  verdict  accord- 
ing to  the  evidence,  even  though  the  effect  of  that  verdict 
should  be  to  take  the  life  of  the  accused.  That  obligation  you 
are  now  to  meet;  let  it  be  so  met  that  a  peaceful  conscience 
may  attend  the  abiding  recollections  of  this  hour,  and,  what- 
ever may  be  the  fate  of  this  unhappy  woman,  that  you  may 
ever  possess  the  conscious  assurance  that  the  laws  under  which 
you  live  and  from  which  we  all  receive  protection,  have  been 
faithfully  upheld  and  impartially  administered. 

With  the  policy  or  wisdom  of  the  law  which  demands  life 
as  the  penalty  of  crime,  neither  you,  as  a  jury,  nor  we,  as  a 
court  have  anything  to  do.  Were  we  sitting  as  legislators,  it 
might  become  us  to  express  our  opinion  on  this  subject;  but 
placed  heret  as  we  are,  to  administer  the  law,  it  is  our  duty  to 


RENSSELAER,  MAY,   1854.  55  j 

The  People  v.  Robinson. 

take  it  as  we  find  it.     The  responsibility  of  taking  human  life 
is  not  upon  us  but  upon  the  lawgiver. 

I  proceed  now,  as  briefly  as  I  may,  to  invite  your  attention  to 
the.  questions  which  will  demand  your  anxious  consideration, 
and  the  prominent  points  of  the  testimony  bearing  upon  those 
questions. 

Timothy  Lanagan  died  on  the  25th  of  May,  1853;  he  died 
of  poison;  was  this  poison  administered  by  the  accused?  This 
is  the  first  question  which  will  require  your  attention.  If  the 
evidence  fails  to  satisfy  you  of  this  fact  your  duty  will  here 
terminate.  You  will  pronounce  your  verdict  of  acquittal 
without  reference  to  the  other  questions  in  the  case. 

But  I  have  not  understood  the  counsel  for  the  defence  as  con- 
tending that  the  evidence  justifies  such  a  conclusion.  The 
accused  was  in  possession  of  the  article  which  upon  the  pnst 
mortem  examination  was  found  in  the  stomach  of  Lanagan. 
Some  ten  days  or  a  fortnight  before,  she  had  purchased  of  Mr. 
Ostrom,  the  druggist,  two  ounces  of  arsenic.  About  one 
o'clock  on  the  day  of  the  death  she  went  into  Lanagan's  house, 
where  she  found  the  family,  Lanagan,  his  wife  and  Catharine 
Lubee  at  dinner.  She  sat  down,  upon  invitation,  to  eat  an 
egg  and  a  potatoe.  Soon  after,  Lanagan  left  the  table  and 
went  into  the  grocery  in  the  front  room  of  the  house.  The 
accused  then  proposed  to  Mrs.  Lanagan  and  Miss  Lubee,  to 
use  the  expression  of  the  witness  herself,  that  they  should  drink 
beer  from  her.  They  at  first  declined,  but  being  urged  they  at 
length  consented.  She  then  proposed,  in  order  to  make  the 
beer  more  palatable,  to  put  sugar  in  it,  and  requested  Mrs 
Lanagan  to  procure  it.  Mrs.  Lanagan,  yielding  to  her  request, 
procured  from  the  grocery  some  fine  white  sugar  in  a  saucer 
She  then  went  back  to  get  the  beer,  leaving  the  accused  and 
Miss  Lubee  in  the  room.  When  she  returned  she  found  the 
accused  walking  the  room  with  the  saucer  of  sugar  in  her  hand, 
and  she  also  says  she  observed  that  she  held  in  her  thumb  and 
finger  a  small  white  paper  folded.  Two  glasses  were  provided 
and  the  beer  poured  out.  There  was  not  enough  to  fill  them. 
The  accused  insisted  that  they  should  be  full.  Mrs.  Lanagan 


652  DECISIONS  IN  CRIMINAL  CASES. 

The  People  t>.  Robinson. 

returned  to  the  grocery  for  more  beer.  When  she  went  back 
the  accused  was  putting  the  sugar  into  the  glasses.  They 
were  filled,  and  Mrs.  Lanagan  and  Miss  Lubee  sat  down  at  the 
table  to  drink.  Mrs.  Lanagan  says  she  observed  upon  the  sur- 
face of  the  beer  a  white  scum,  and  thinking  it  might  be  dust 
that  had  fallen  upon  the  sugar  while  standing  in  an  open  box 
in  the  store,  she  took  a  tea-spoon  to  remove  it — that  while  in 
the  act  of  doing  so,  the  accused,  who  was  standing  by  arrested 
her  hand  and  took  the  tea-spoon  from  her,  saying  that  was  the 
best  part  of  it  and  that  it  would  do  her  good.  At  that  moment 
Mrs.  Lanagan  was  called  to  the  grocery  by  her  husband.  She 
remained  there,  but  her  husband  came  and  he  and  Miss  Lubee 
drank  the  beer.  He  died  at  seven  o'clock  the  same  evening, 
and  Miss  Lubee  died  at  four  o'clock  the  next  morning. 

This  branch  of  the  case  depends  entirely  upon  the  testimony 
of  Mrs.  Lanagan.  From  the  nature  of  the  case  there  could  be  no 
other  evidence.  Had  she  imbibed  the  fatal  draught  instead 
of  her  husband,  as  was  at  first  intended,  there  would  have  been 
no  one  left  to  detail  the  circumstances.  The  credibility  of 
Mrs.  Lanagan  has  not  been  questioned.  If  her  story  is  to  be 
believed,  it  would  seem  to  leave  no  room  for  doubt.  You  can 
not  hesitate,  however  painful  it  may  be,  to  come  to  the  con- 
clusion that  it  was  the  accused,  and  no  one  else,  who  adminis- 
tered the  arsenic  which  produced  the  death  of  Lanagan. 

Assuming  that  your  mind  will  be  brought  to  this  conclusion, 
I  proceed  to  bring  your  attention  to  another  important  inquiry 
— an  inquiry  which  from  its  very  nature  is  far  more  difficult. 
That  inquiry  is,  whether,  at  the  time  she  committed  the  act, 
the  accused  was  in  a  condition  to  render  her  legally  responsible 
for  crime — and  this  depends  upon  the  question  whether,  at  the 
time,  she  was  in  a  state  of  mind  which  enabled  her  to  know 
that  what  she  did  was  wrong.  If  at  the  moment  of  mingling 
that  cup  she  knew  that  she  was  doing  wrong  and  deserved  to 
be  punished  for  it,  then,  whatever  else  there  may  be  in  the  case, 
before  the  law  she  is  answerable  for  the  act  as  a  crime.  The 
evidence  of  her  conduct  before  and  after  is  of  no  importance 
except  as  it  reflects  light  upon  her  condition  at  the  fatal  hour 


RENSSELAER.    MAY,  1854.  553 

The  People  v    Robinson. 

when  she  committed  the  deed  for  which  she  is  now  before  you 
to  answer. 

It  seems  that,  about  the  period  in  question,  the  accused  had 
indulged  very  freely  in  the  use  of  intoxicating  drink.  Mr. 
Ostrom  says  that  when  she  was  at  his  store  on  Saturday  even- 
ing, which  must  have  been  the  21st  of  May,  she  was  quite 
intoxicated.  Mr.  Brownell  says  that  when  she  came  to  his 
office  in  the  early  part  of  May,  he  thought  her  the  worse  for 
liquor.  Mr.  Cox  says  she  frequently  purchased  liquor  at  his 
store,  sometimes  taking  it  there,  and  sometimes  taking  it  home 
with  her.  Mrs.  Lanagan  says  that,  early  in  the  morning  of 
the  25th  of  May,  she  came  to  the  grocery  and  procured  a  quart 
of  beer,  which  she  took  home  with  her;  and  as  the  deceased 
was  living  alone,  it  may  be  presumed  that  she  applied  it  to  her 
own  personal  use.  At  8  o'clock  she  sent  old  Mr.  Haley  to 
borrow  $2  of  Mrs.  Lanagan,  and  before  he  left  she  came 
herself.  About  eleven  o'clock  she  was  there  again.  It  is  not 
proved  that  she  drank  then,  but  she  went  into  the  room  back 
of  the  grocery,  where  there  were  several  men,  and  engaged  in 
noisy,  boisterous  conversation.  The  fact  that  she  was  found 
in  such  a  place,  and  in  such  company,  furnishes  some  ground 
for  the  belief  that  she  was  then  under  the  influence  of  liquor. 
Mrs.  Lanagan  says  that  perceiving  the  noise  she  went  into  the 
room  and  told  her  to  go  home — that  it  was  no  place  for  her  to 
be  there  among  such  a  set  of  men.  At  one  o'clock  she  came 
again,  and  then  the  poison  was  mingled  with  the  beer.  Shortly 
after  she  left,  she  sent  Haley  for  Mrs.  Lanagan  to  come  to  her 
house.  It  is  the  theory  of  the  prosecution  that,  having  failed 
in  procuring  Mrs.  Lanagan  to  drink  the  poison,  it  was  her 
object  to  get  her  over  to  her  house,  so  that  she  might  yet  exe- 
cute her  purpose.  But  of  this,  of  course,  there  is  no  proof. 
About  3  o'clock  she  was  at  the  grocery  again  and  asked  for  beer. 
Mrs.  Lanagan  says  she  told  her  she  did  not  need  any,  and 
declined  to  let  her  have  it  The  answer  and  the  conduct  of 
Mrs.  Lanagan  at  this  time,  indicate  pretty  strongly,  I  think, 
the  condition  in  which  she  was  at  the  timej  or,  at  least,  what 
Mrs.  Lanagan,  thought  of  her  condition.  While  there,  Lan- 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  Robinson. 


agan  came  home  sick,  and  Miss  Lubee  had  already  taken  to 
her  bed. 

Upon  this  state  of  facts,  the  question  presents  itself  whether, 
at  the  time  she  committed  the  fatal  deed,  the  accused  was  in- 
toxicated? That  she  was  greatly  excited  there  is  no  reason  to 
doubt.  This  is  sufficiently  evident  from  the  fact  of  her  having 
visited  the  grocery  so  frequently.  That  she  drank  freely,  is,  I 
think,  also  evident.  Was  she,  then,  intoxicated? 

It  is  my  duty  to  say  to  you,  gentlemen,  that,  if  she  was  in- 
toxicated, even  to  such  an  extent  that  she  was  unconscious  of 
what  she  was  doing,  still  the  law  holds  her  responsible  for  the 
act.  It  is  true  to  constitute  the  crime  of  murder  there  must  be 
killing  of  a  human  being  with  a  premeditated  design  to  effect 
death.  But  this  design  need  not  be  proved.  Where  the  act  is 
committed  the  law  imputes  the  design.  It  proceeds  upon  the 
sensible  principle  that  a  man  may  reasonably  be  presumed  to 
intend  to  do  what  he  in  fact  does.  Thus,  if  a  man  will  draw 
from  his  pocket  a  pistol  and  deliberately  shoot  down  a  fellow 
man,  the  law,  without  further  proof,  adjudges  that  it  was  in 
his  heart  to  kill  him.  If  he  would  excuse  himself  he  must 
show  affirmatively  that  he  had  no  such  guilty  purpose.  Then, 
and  then  only,  can  he  be  exonerated  from  guilt.  If  it  appear 
that  by  the  inscrutable  visitation  of  Providence  the  faculties  of 
his  mind  had  become  so  disordered  that  he  was  no  longer  capa- 
ble of  discriminating  between  right  and  wrong  in  respecl  to 
the  act  he  has  committed,  then  the  law,  in  its  justice,  pro- 
nounces him  innocent  of  the  crime.  But,  if  his  derangement 
is  voluntary;  if  his  madness  be  self  invited;  the  law  will  not 
hear  him  when  he  makes  his  intoxication  his  plea  to  excuse 
him  from  punishment. 

If,  then,  the  accused  mingled  poison  in  the  beer  that  was 
drank  by  Lanagan,  the  law  charges  her  with  a  design  to  kill 
him;  and  though  she  may  have  been  excited  by  drink  at  the 
time,  even  to  such  an  extent  as  not  to  know  what  she  was 
doing,  she  must  answer  for  the  consequences.  Her  self-inflicted 
insanity  must  not  be  allowed  to  avail  her  for  defence.  The 
law  imputes  to  her  still  a  murderous  intent. 


REX.SSr.LAER,  MAY,  1S54. 


The  People  v.  Robinson. 


But  it  is  urged,  in  behalf  of  the  defence,  that  the  accused 
was  not  merely  intoxicated;  that  she  was,  in  fact,  insane.  If 
this  be  so  —  if  by  the  visitation  of  God  she  was  so  bereft  of 
reason  as  to  be  unconscious  of  the  character  of  the  act  she  was 
committing,  there  is  an  end  of  her  accountability.  But  before 
you  can  allow  this  ground  of  defence  to  prevail,  you  must  be 
satisfied  of  its  existence  by  affirmative  proof.  Every  person  is 
presumed  to  be  sane.  When  the  contrary  is  asserted  it  must  be 
proved.  The  presumption  of  sanity  must  be  overcome  by 
satisfactory  countervailing  evidence. 

Upon  this  branch  of  the  case,  it  is  your  duty  to  examine  the 
facts  in  the  case  with  the  most  diligent  care.  And  here  the 
question  of  motive  may  well  be  considered.  It  has  been  urged 
by  the  counsel  for  defence  that  there  could  have  been  no 
possible  motive  for  destroying  the  lives  of  Lanagan  and  Mrs. 
Lubee;  and  that  the  absence  of  motive  furnishes  a  strong 
ground  for  inferring  that  the  act  must  have  been  committed  in 
a  state  of  insanity.  The  existence  or  want  of  motive  to  com- 
mit the  crime  alleged  is  always  a  legitimate  subject  of  inquiry. 
In  cases  depending  upon  circumstantial  evidence  it  is  sometimes 
of  vital  importance.  But  it  is  never  indispensable  to  a  con- 
viction that  a  motive  for  the  commission  of  the  crime  should 
appear.  The  Jaw  imputes  malice  to  the  act  so  that  the  very 
proof  of  the  killing  furnishes  also  presumptive  evidence  of 
malice.  And  yet,  while  the  prosecution  is  relieved,  by  this 
legal  presumption,  from  proving  an  actual  motive  for  the  com- 
mission of  the  offence,  the  absence  of  such  proof  is  often  an 
important  consideration  for  the  jury  in  determining  the  effect 
to  be  given  to  the  other  evidence  in  the  case. 

But  it  is  contended,  on  the  part  of  the  prosecution,  that 
there  is  proof  of  a  state  of  feeling,  which,  considered  in  con- 
nection with  the  state  of  mind  exhibited  by  the  accused  at 
about  the  period  in  question,  relieves  the  case  of  this  objection. 
It  appears  that  some  time  during  the  spring  there  had  been  a 
dance  at  Lanagan's.  Though  not  one  of  the  party,  the  accused 
went  there  and  became  engaged  in  an  altercation  with  one 
Smith,  and  angry  words  and  loud  conversation  ensued.  If  it 


(556  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Robinson. 

be  true,  as  has  been  assumed  throughout  the  trial,  that  the 
accused  is  of  gentle  birth  and  has  once  moved  in  the  higher 
and  more  refined  walks  of  life,  what  a  painful  illustration  she 
presents  of  the  rapid  descent  which  a  woman  makes  to  the 
lowest  depths  of  degradation  and  vice,  when  she  once  consents 
to  take  leave  of  virtue  and  innocence!  Here  we  have  this 
fallen  woman,  who  is  described  to  us  as  possessing  high  accom- 
plishments and  lady-like  manners,  voluntarily  mingling  with 
the  parties  to  a  grocery  dance,  engaging  in  a  brawl  with  one 
of  the  party,  and  carrying  the  quarrel  so  far  as  to  present  her 
revolver  and  threaten  to  shoot  him.  To  quell  the  disturbance 
she  was  required  to  leave  the  house,  and  finally  Mrs.  Lanagan 
led  her  home.  This  occurrence  seems  to  have  stung  her  pride, 
for,  one  or  two  mornings  after,  we  find  her  returning  to  the 
grocery,  before  Lanagan  was  out  of  bed,  and  she  then,  as  Mrs. 
Lanagan  says,  commenced  abusing  her:  saying  that  she  was  a 
very  mean  woman  to  keep  a  set  of  rowdies  about  her  house  to 
insult  her  when  she  came  there.  Her  language  was  so  loud 
and  violent  that  Lanagan  got  up,  and,  coming  into  the  grocery, 
ordered  her  to  leave,  which  she  refused  to  do,  until  Mrs.  Lana- 
gan again  interfered  and  induced  her  to  go  home. 

The  result  of  this  quarrel  was,  that  she  did  not  again  return 
to  Lanagan's  for  some  three  weeks,  after  which  she  again  re- 
newed her  visits.  It  is  the  theory  of  the  prosecution  that  these 
occurrences  left  a  sting  rankling  in  the  bosom  of  this  woman, 
which  needed  but  the  excitement  of  which  she  was  the  subject 
on  the  25th  May,  to  arouse  her  to  such  a  degree  as  to  make 
her  resolve  upon  the  destruction  of  those  who  had  become  the 
subjects  of  her  resentment.  Certainly,  these  circumstances 
wrould  furnish  to  a  sound  mind  but  a  slight  motive  for  the  com- 
mission of  such  a  crime.  How  far  they  would  operate  upon 
an  irascible  temperament  like  hers,  when  greatly  excited  by 
stimulants,  and,  perhaps  other  vitiating  causes,  it  is  for  you, 
gentlemen,  to  judge. 

There  is  another  feature  of  this  case,  which  may  have  some 
bearing  upon  the  question  under  consideration,  to  which  I 
would  direct  your  attention.  It  is  the  manner  in  which  the 


RENSSELAER,  MAY,  1854.  657 

The  People  ».  Robinson. 

deed  was  accomplished.  We  see  no  outburst  of  passion,  but 
everything  is  apparently  cool  and  orderly.  First,  the  proposi- 
tion to  drink  the  beer,  and  that  insisted  upon;  then,  obtaining 
the  sugar,  the  arrangements  to  mix  the  poison  with  it,  while 
the  glasses  were  being  filled;  then  the  refusal  of  the  accused 
herself  to  drink,  and  her  efforts  to  prevent  any  of  the  contents 
of  the  glass  from  being  removed.  These  are  characteristics 
which  may,  perhaps,  shed  more  light  upon  the  state  of  this 
woman's  mind  at  the  time. 

There  is  another  class  of  evidence  bearing  upon  the  question 
of  insanity,  to  which  you  will  not  fail  to  give  the  attention 
which  you  think  it  deserves.  I  allude  to  the  conversation  of 
the  accused  a  short  time  previous  to  the  25th  of  May.  This 
evidence  is  found  chiefly  in  the  testimony  of  the  young  sewing 
girl,  Mary  Jane  Dillon,  who  became  acquainted  with  her  in 
March  previous.  The  testimony  of  Anthony  Goodspeed  belongs 
to  the  same  class.  I  will  not  recapitulate  this  evidence.  It 
can  not  but  be  fresh  in  your  memories.  There  certainly  must 
have  been  in  the  statements  made  to  Miss  Dillon,  a  strange 
commingling  of  truth  and  falsehood :  the  latter  predominating. 
Whether  the  tales  she  told  were  the  vagaries  of  a  distempered 
imagination,  or  the  inventions  of  her  fancy,  designed  to  amuse 
her  youthful  and  newly  acquired  friend,  it  is  for  you  to  enquire. 
There  was,  too,  something  exceedingly  strange  at  times  in  her 
conduct;  especially  when  in  the  morning  she  carne  in  her  night 
clothes  to  the  residence  of  Miss  Dillon  and  borrowed  her  dress. 
It  will  be  your  duty  to  satisfy  yourselves  as  to  the  state  of 
mind  to  which  this  conduct  is  to  be  attributed. 

It  certainly  was  not  strange  that  the  accused  and  this  young 
girl  should  be  mutually  pleased  with  each  other.  The  accused, 
with  an  ardent  temperament  which  demanded  society,  was  so 
situated  that  she  was  compelled  to  live  alone.  She  had  sought 
companionship  among  those  who  had  no  tastes  or  sympathies 
with  her  own,  and  whom  she  regarded,  probably,  with  con- 
tempt. It  was  a  relief  to  her  solitariness,  therefore,  to  meet 
with  Miss  Dillon;  a  young,  artless,  imaginative  girl,  with 
whom  she  could  at  least  talk.  There  was  much,  too,  in  the 

VOL.  I.  83 


658  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  Robinson. 

air  and  manner  and  romantic  stories  of  the  accused,  to  please 
the  taste  for  romance  which  this  young  girl  seems  to  have 
possessed.  She  says  she  was  pleased  with  her  conversation, 
though  she  admits  that  her  ear  was  sometimes  offended  by 
expressions  both  of  profanity  and  obscenity.  How  far  the  tes- 
timony of  this  girl  tends  to  establish  the  defence,  is  for  you  to 
consider.  It  is  upon  this  testimony,  supported,  as  it  is,  by 
some  other  kindred  but  less  important  evidence,  that  the  counsel 
for  the  defence  chiefly  rely. 

The  theory  of  the  defence  is,  that  the  accused  had  become 
apprehensive  that  she  was  about  to  be  abandoned  by  one  who 
had  been  her  friend  and  supporter,  and  that  this  apprehension 
operating  on  her  nervous,  excitable  temperament  with  the 
recollection  of  her  own  former  position,  from  which  she  had  so 
sadly  fallen,  had  unhinged  her  mind,  and  that  the  eccentricities 
which  marked  her  conduct  about  the  period  to  which  our 
inquiries  relate,  were  but  the  outbursts  of  incipient  madness. 
To  sustain  this  theory  the  testimony  of  Mr.  Brownell  was 
introduced,  to  whom,  it  seems,  early  in  May,  the  accused  had 
described  her  griefs  and  apprehensions. 

Thus  far  I  have  only  noticed  the  testimony  which  relates  to 
occurrences  which  happened  before  the  arrest  of  the  accused. 
What  her  conduct  was  afterwards  is  only  important  as  it  sheds 
light  on  her  previous  condition.  Her  conduct  after  she  was 
committed  to  prison  was  indeed  strange.  How  far  this  conduct 
was  produced  by  the  enormity  of  the  charge  preferred  against 
her,  and  a  sense  of  the  condition  in  which  she  found  herself; 
and  how  far  by  being  suddenly  deprived  of  the  stimulants  in 
which  she  had  evidently  been  indulging  so  freely;  or  how  fa; 
by  disordered  intellect;  are  questions  which  I  suggest  for  you) 
consideration.  In  this  connection,  too,  it  will  be  proper  tr 
consider  the  opinions  of  the  two  physicians  who  had  the 
opportunity  of  seeing  her  in  jail,  and  who  say  that,  in  their 
opinion,  she  was  not  rational.  Such  opinions  are  allowed  to 
be  given  in  evidence,  not  as  by  any  means  controlling  your 
own  opinions,  but  to  be  considers!  by  the  jury,  who  are  to 
give  tlu:n  .-,u<-h  -Avi^'lit  as,  in  their  judgment,  having  regard  to 


NEW  YCWa,   SEPTEMBER,  1SS2. 


The  People  v.  The  Sheriff  of  Westchester  County. 

the  experience  and   opportunities  for  observation  which  those 
who  express  the  opinions  have  enjoyed,  such  opinions  deserve. 

And  now,  gentlemen,  I  have  noticed  what  I  regard  as  the 
principal  points  and  features  of  the  case  before  us.  I  have  not 
thought  it  fit  to  review  at  length  the  evidence  presented,  as  I 
am  sure  that  it  is  all  fully  within  your  recollection 

Here  my  duty  ends  and  yours  begins.  I  am  conscious  how 
imperfectly  I  have  discharged  my  duty,  and  yet  it  has  been  my 
single  aim  to  administer  the  law  with  a  steady  and  unswerving 
hand.  In  the  discharge  of  your  duty,  be  faithful  to  your  own 
high  obligations.  Deal  justly  with  this  poor,  unhappy  woman, 
whose  destiny  is  now  committed  to  your  hands.  Deal  merci- 
fully with  her,  too.  This  is  your  privilege.  The  law  allows 
every  well-grounded  doubt  to  avail  for  her  acquittal.  If,  after 
a  full  consideration  of  all  the  facts  in  the  case,  no  such  doubt 
rests  upon  your  minds,  you  must  not  hesitate,  though  it  be  with 
anguish  of  heart,  to  pronounce  her  guilty.  But  if  you  can, 
after  all,  say  that  you  are  not  satisfied  of  her  guilt,  it  will  be 
your  agreeable  duty  to  pronounce  a  verdict  of  acquittal. 

The  jury  found  the  prisoner  guilty. 


SUPREME  COURT.     At  Chambers,  New  York,  September,  1852. 
Before  Edmonds,  Justice. 

THE  P^OPI  E  ex  rel.  McMAHON  vs.   THE  SHERIFF  OF  WEST- 
CHESTER  COUNTY. 

The  intent  to  do  bodily  harm  to  some  one  out  of  a  number  of  persons  is  ne- 
cessary, under  the  2d  subd.  of  sec.  5  of  2  Rev.  Stat.  p.  657,  to  constitute  the 
crime  of  murder,  even  where  the  homicide  is  effected  by  an  act  imminently 
dangerous  to  others,  evincing  a  depraved  mind,  regardless  of  human  life. 

Dubitattir,  whether  there  should  not  also  be  an  intent  to  kill,  though  not 
aimed  at  any  particular  person. 

Deaths  caused  by  the  burning  of  a  steam  boat  which  results  from  the  making 
of  excessive  fires  for  the  purpose  of  creating  excessive  steam,  in  order  to 
out-race  another  steam  boat,  declared  not  to  come  under  the  denomination  of 
murder,  but  parties  held  to  bail  for  manslaughter  in  the  first  degree. 


(3(50  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  The  Sheriff  of  Westchester  County. 

Where  the  offence  was  committed  on  navigable  tide  waters  wholly  within  tht> 
state  of  New  York,  and  the  United  States  Courts  and  the  State  Courts  as- 
sumed jurisdiction  thereof,  the  former  prior  in  point  of  time  to  the  latter,  it 
was  held  on  a  writ  of  habeas  corpus  issued  to  test  the  legality  of  the  latter 
arrest,  that  the  conflict  of  jurisdiction  could  only  be  avoided  by  setting  up 
judgment  pronounced  in  one  of  the  tribunals,  which,  when  obtained,  would 
be  a  bar  to  the  proceeding  in  the  other. 

It  was  also  held  to  be  by  no  means  clear  that  the  State  Courts  had  not  juris- 
diction over  the  subject  matter  of  the  offence  whereof  jurisdiction  had  already 
been  exercised  by  the  United  States  tribunal.  At  all  events,  the  question 
considered  too  important  to  be  decided  summarily  on  habeas  corpus. 


The  relator  presented  on  the  24th  day  of  August,  1852,  to 
Mr.  Justice  Edmonds,  his  petition,  verified  in  clue  form,  setting 
up  that  John  F.  TaHman,  captain  of  the  steam  boat  Henry  Clay, 
Edward  Hubbard,  pilot  of  said  vessel,  James  L.  Jessup,  cap- 
tain's clerk,  John  Germaine,  engineer,  Charles  W.  Merritt, 
second  engineer,  or  oiler,  James  Elmendorf,  second  pilot,  were, 
together  with  Thomas  Collyer,  one  of  the  owners  of  said  vessel, 
detained  in  the  custody  of  the  sheriff  of  Westchester  county, 
under  an  arrest  made  by  him  in  pursuance  of  a  warrant  issued 
by  John  W.  Mills,  county  judge  of  Westchester  county,  on  a 
complaint  made  before  him  by  Edward  Wells,  district  attorney 
of  Westchester  county,  charging  the  said  parties  with  murder. 

That  such  arrest  was  made  in  the  city  of  New  York,  wherein 
the  said  sheriff  then  held  them. 

The  petitioner  further  alleged  that  prior  to  such  arrest,  to 
wit,  on  or  about  the  fourth,  seventh  and  eleventh  days  of 
August,  1852,  the  said  several  parties  had  been  arrested,  com- 
mitted and  bailed  in  the  United  States  Circuit  Court  for  the 
southern  district  of  New  York,  the  said  court  having  jurisdiction 
of  the  offence  on  warrants  issued  out  of  said  court  on  complaints 
made  before  George  W.  Morton,  a  commissioner  of  said  court, 
having  authority  to  entertain  the  same  for  the  selfsame  offence 
with  that  complained  of  before  the  Westchester  authorities. 
That  the  complaint  in  Westchester  county,  and  that  before  the 
United  States  court  in  this  district,  were  based  on  the  same 
alleged  guilty  and  felonious  act. 

And  the  arrest,  commitment  and  holding  to  bail  in  the  United 


NEW  YORK,  SEPTEMBER,  1852. 


The  People  v.  The  Sheriff  of  Westchester  County. 

States  courts  were  anterior  in  point  of  time  to  the  arrest  under 
the  Westchester  warrant,  and  the  United  States  authorities 
were  entertaining  and  holding  jurisdiction  of  said  offence. 

The  petitioner,  therefore,  prayed  that  a  writ  of  habeas  corpus 
might  issue  to  the  said  sheriff,  commanding  him  to  bring  up  the 
said  parties  before  Justice  Edmonds,  to  do  and  receive  what 
should  then  and  there  be  considered  concerning  them. 

Annexed  and  referred  to  in  this  petition,  were  the  following 
documents,  duly  certified,  viz: 

The  warrant  of  arrest  on  the  charge  of  murder  issued  out  of 
Westchester  county  by  Judge  Mills. 

The  complaints  made  before  the  United  States  court  in  this 
district.  The  several  warrants  issued  on  said  complaints  by 
United  Stales  Commissioner  Morton.  And  the  bail  bonds  given 
by  the  several  parties  on  their  respective  commitments  under 
said  warrants  by  the  United  States'  court. 

On  this  petition  a  writ  of  habeas  corpus  in  due  form  directed 
to  the  sheriff  of  Westchester  county,  and  commanding  him  to 
bring  up  the  said  several  parties  before  Justice  Edmonds,  at  the 
City  Hall  of  the  city  of  New  York,  on  the  26th  day  of  August, 
1852,  was  duly  allowed  and  served  in  the  city  of  New  York,  on 
the  sheriff  of  Westchester  county. 

And  in  pursuance  of  the  said  writ,  the  sheriff  of  Westchester 
county  returned  that  he  held  the  said  several  parties  in  custody 
under  and  in  pursuance  of  the  warrant  issued  by  Judge  Mills 
referred  to,  and  a  copy  of  which  was  annexed  to  Mr.  McMahon's 
petition,  upon  which  return  it  was  agreed  by  the  respective 
counsel  for  the  prisoners  and  the  district  attorney  of  West- 
Chester  county,  that  the  facts  set  forth  in  Mr.  McMahon's 
petition  should  be  admitted  to  be  true  for  the  purposes  of  the 
argument  on  the  writ  of  habeas  corpus. 

The  Westchester  warrant  and  the  complaints  before  the 
United  States  courts  were  referred  to  in  detail  on  the  argument 
of  the  habeas  corpus,  and  they  were  in  substance  as  follows: 

The  Westchester  warrant  recited  that  Edward  Wells,  district 
attorney  of  Westchester  county,  had  made  a  complaint  before 
John  W  Mills,  judge  of  the  county  of  Westchester,  that  on  the 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  West  Chester  County. 

28th  July,  1852,  the  steam  boat  Henry  Clay,  used  and  navigated 
on  the  Hudson  river  within  the  boundaries  of  the  state  of  New 
York,  for  the  conveyance  of  passengers,  &c.,  while  on  her  pas- 
sage from  Albany  to  New  York  with  passengers  on  board,  took 
fire  opposite  the  county  of  Westchester,  and  was  run  on  short 
in  the  town  of  Yonkers,  in  said  county,  and  was  consumed  there 
by  fire.  That  at  that  time  divers  persons,  whose  names  are 
given  at  length,  or  stated  to  be  unknown,  were  passengers  on 
said  boat,  and  that  said  persons,  excepting  one  John  K.  Sy- 
monds,  by  reason  either  of  the  shock  of  the  collision  of  the  said 
boat  with  the  shore,  were  cast  and  thrown,  or  in  their  efforts  to 
save  themselves  from  destruction  by  fire,  did  cast  and  throw 
themselves  into  the  Hudson  river  and  were  suffocated  and 
drowned,  and  in  consequence  thereof  died,  and  that  John  K. 
Symonds  was  burnt  to  death  on  board  of  the  said  boat. 

That  John  F.  Tallman  was  captain  and  one  of  the  owners  of 
the  boat,  and  had  part  of  the  charge  thereof.  That  Thomas 
Collyer  was  one  of  the  owners  and  had  part  of  the  charge  of  the 
boat. 

That  James  L.  Jessup  was  second  captain,  or  clerk,  and  had 
part  of  the  charge  thereof;  likewise  Edward  Hubbard,  who  was 
pilot,  also  James  Elmendorf,  the  second  pilot.  That  John  Ger- 
maine  was  engineer,  and  Charles  W.  Merritt  second  engineer, 
and  had  part  of  the  charge  thereof,  and  that  a  young  man 
whose  name  was  unknown  was  barkeeper  and  had  part  of  the 
charge  thereof. 

That  while  the  said  boat  was  navigating  the  Hudson  river 
on  that  day,  for  the  purpose  of  excelling  in  speed  a  certain 
other  steam  boat  called  the  Armenia,  used  also  for  the  convey- 
ance of  passengers  on  said  river,  or  for  the  purpose  of  increasing 
the  speed  of  the  Henry  Clay,  the  said  prisoners  did  create,  or 
allow  to  be  created,  an  undue  or  an  unsafe  quantity  of  steam, 
and  in  so  doing  did  make  or  cause  or  allow  to  be  made  upon 
the  Henry  Clay,  excessive  fires,  and  did  not  use  ordinary  pru- 
dence in  the  management  of  the  same,  and  although  remon- 
strated with  on  account  of  the  same  by  diffeient  passengers  on 
board,  did  not  for  a  long  time  abate  the  same,  but  for  a  long 


NEW  YORK,  SEPTEMBER,  1852.  553 


The  People  t>.  The  Sheriff  of  Westchester  County. 

while  continued  the  same,  in  consequence  whereof  and  of  the 
culpable  negligence  and  criminal  recklessness  of  the  said  Tall- 
man,  Collyer,  Jessup,  Elmendorf,  Hubbard,  Germaine,  Merritt, 
and  of  the  barkeeper  of  the  Henry  Clay,  the  said  boat  did  then  and 
there  take  fire,  and  all  of  the  deaths  ensued  as  aforesaid.  That 
the  complainant  has  reason  to  suspect  and  believe  that  all  and 
each  of  the  abovenamed  deceased  passengers  were  murdered  by 
an  act  perpetrated  by  the  said  Tallman,  Collyer,  Jessup,  Elmen- 
dorf, Hubbard,  Germaine,  Merritt  and  the  barkeeper,  which  act 
was  immediately  dangerous  to  others,  and  evinced  a  depraved 
mind,  regardless  of  human  life,  although  it  was  perpetrated 
without  any  premeditated  design  to  effect  the  death  of  any  par- 
ticular individual,  and  that  he  believes  the  said  several  prison- 
ers did  feloniously  kill  and  murder  the  said  deceased  persons  in 
the  manner  and  by  the  means  above  stated.  The  warrant  fur- 
ther recited  that  said  complaint  prayed  that  the  said  several 
prisoners  might  be  apprehended  and  held  to  answer  the  said 
charge,  and  it  commanded  the  sheriff  of  Westchester  county  to 
arrest  the  said  prisoners  and  bring  them  before  John  W.  Mills, 
county  judge,  to  be  dealt  with,  &c.  The  warrant  was  signed 
by  the  county  judge,  and  dated  the  13th  August,  1852,  and  was 
in  due  form. 

The  United  States  complaints  were  as  follows: 

Southern  District  of  New  York,  ss. — Michael  Cavanagh, 
being  duly  sworn,  deposes  and  says  that  he  resides  at  present 
in  this  city,  and  was  a  passenger  on  board  the  steam  boat  Henry 
Clay  (a  vessel  propelled  in  whole  by  steam)  from  Newburg  on 
the  twenty-eighth  day  of  July,  one  thousand  eight  hundred  and 
fifty-two. 

And  this  deponent  further  says,  that  Thomas  Collyer,  an 
owner,  John  F.  Tallrnan,  captain,  John  Germaine,  engineer, 
James  L.  Jessup,  clerk,  and  Edward  Hubbard,  pilot  of  said 
steam  boat  called  the  Henry  Clay,  being  persons  employed  on 
board  said  steam  boat,  which  said  steam  boat  was  propelled  by 
steam,  did  at  ab^ut  half  past  three  o'clock  in  the  afternoon  of 
Wednesday  the  Siuid  twenty-eighth  day  of  July,  on  the  Hudson 


664  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  The  Sheriff  of  Westchester  County. 

river,  near  Yonkers,  within  the  southern  district  if  New  York, 
in  the  second  circuit,  and  within  the  jurisdiction  of  the  United 
States  of  America,  by  their  misconduct,  negligence  or  inatten- 
tion to  their  respective  duties  on  board  said  steam  boat,  cause 
the  death  of  Julia  Hoy,  this  deponent's  niece,  then  and  there 
being  a  passenger  on  board  said  steam  boat  Henry  Clay,  and 
did  also  cause  the  death  of  A.  J.  Downing,  Mrs.  Maria  Bailey, 
Miss  Maria  Bailey,  Mary  Ann  Robinson,  Elizabeth  Hillman, 
Matilda  Wadsworth,  J.  J.  Speed,  and  others,  who  were  likewise 
passengers  on  board  said  steam  boat. 

Southern  District  of  New  York,  ss. — William  A.  Irvin  being 
duly  sworn,  deposes  and  says,  that  he  does  business  in  the  city 
of  Pittsburgh,  and  was  a  passenger  on  board  the  steam  boat 
Henry  Clay  from  Albany,  on  the  twenty-eighth  instant. 

And  this  deponent  further  says,  that  by  the  misconduct,  neg- 
ligence or  inattention  to  their  respective  duties,  of  J.  F.  Tall- 
man,  captain,  John  Germaine,  engineer,  James  L.  Jessup.  clerk, 
Thomas  Collyer,  one  of  the  owners,  and  Edward  Hubbard,  pilot 
of  the  said  steam  boat  called  the  Henry  Clay,  which  said  vessel 
was  propelled  in  the  whole  by  steam,  on  the  said  twenty-eighth 
day  of  July,  one  thousand  eight  hundred  and  fifty-two,  on  the 
Hudson  river,  near  Yonkers,  in  the  southern  district  of  New 
York,  the  lives  of  Stephen  Allen,  and  others  on  board  said 
steam  boat,  were  destroyed  by  burning  or  drowning,  said  J.  F. 
Tallman,  John  Germaine,  James  L.  Jessup,  Thomas  Collyer, 
and  Edward  Hubbard,  being  employed  on  board  of  said  steam 
boat  called  the  Henry  Clay. 

Southern  District  of  New  York,  ss. — Michael  Cavanagh, 
being  duly  sworn,  deposes  and  says,  that  he  was  a  passenger 
on  board  the  steam  boat  Henry  Clay  (a  vessel  propelled  in 
whole  by  steam)  from  Albany,  on  the  twenty-eighth  day  of 
Jury,  in  the  year  one  thousand  eight  hundred  and  fifty -two,  and 
that  on  that  day,  to  wit,  on  the  Hudson  River,  near  Yonkers, 
in  the  southern  district  of  New  York,  in  the  second  circuit,  and 
within  the  jurisdiction  of  the  United  States  of  America,  at 


NEW  YORK,  SEPTEMBER,  1852. 


The  People  v.  The  Sheriff  of  Westchester  County. 

about  half  past  three  o'clock  in  the  afternoon,  by  the  miscon- 
duct, negligence  or  inattention  of  James  Elmcndorf,  second 
pilot,  and  Charles  Merritt,  assistant  engineer  of  said  steam  boat 
Henry  Clay  (then  and  there  being  persons  employed  on  board 
said  steam  boat,)  to  their  respective  duties  on  board  said  steam 
boat,  did  cause  the  death  of  Julia  Hoy,  A.  J.  Downing,  Mrs. 
Maria  Bailey,  Miss  Maria  Bailey,  Matilda  Wadsworth,  J.  J. 
Speed,  and  others  on  board  said  steam  boat  by  burning  or 
drowning. 

The  Westchester  complaint  was  based  upon  the  second  sub- 
division of  2d  Rev.  Stat.  p.  746,  sec.  5,  3d  ed.,  which  provides 
in  substance:  That  the  killing  of  a  human  being  without  the 
authority  of  law,  by  any  means  whatever,  shall  be  murder  when 
perpetrated  by  any  act  imminently  dangerous  to  others,  and 
evincing  a  depraved  mind,  regardless  of  human  life,  although 
without  any  premeditated  design  to  effect  death  of  any  par- 
ticular individual. 

The  United  States  complaint  was  based  on  the  12th  section 
of  the  act  of  congress  of  July  7th,  1838,  which  provides: 

That  every  captain,  engineer,  pilot  or  other  person  employed 
on  board  of  any  steam  boat  or  vessel  propelled  in  whole  or  in 
part  by  steam,  by  whose  misconduct,  negligence  or  inattention 
to  his  or  their  respective  duties,  the  life  or  lives  of  any  person 
or  persons  on  board  said  vessel  may  be  destroyed,  shall  be 
deemed  guilty  of  manslaughter,  and  upon  conviction  thereof 
before  any  circuit  court  of  the  United  States,  shall  be  sentenced 
to  confinement  at  hard  labor  for  a  period  not  more  than  ten 
years. 

The  matter  came  on  to  be  argued  before  Mr.  Justice  Ed- 
monds, on  the  first  day  of  September,  1852,  on  the  return  arul 
facts  agreed  upon  by  the  respective  counsel. 

Dennis  McMahon,  Jr.,  appeared  as  counsel  for  the  defend- 
ants, Tallman,  Hubbard,  Elmendorf,  Jessup,  Germaine  and 
Merritt 

VOL.  L  84 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 

Charles  O'Connor  and  F.  B.  Cutting,  for  the  defendant 
Collyer. 

Edward  Wells,  district  attorney  of  Westchester  county,  and 
Ralph  Lockwood,  for  sheriff  of  Westchester  county. 

D.  McMahon,  Jr.,  opened  the  argument  for  the  prisoners, 
and  after  alluding  to  the  facts,  stated  that  the  gravamen  of  the 
charge  as  presented  in  the  Westchester  warrant,  was  as  follows, 
viz: 

First,  The  creation  of  an  undue  or  an  unsafe  quantity  oi 
steam  for  the  purpose  of  excelling  the  steam  boat  Armenia,  IP 
speed. 

Second,  For  the  purpose  of  keeping  up  that  steam,  making 
excessive  fires,  and  in  displaying  the  want  of  ordinary  pru- 
dence in  their  management,  and  in  continuing  the  same  against 
the  remonstrances  of  passengers,  whereby  the  vessel  caught 
fire,  and  said  deaths  ensued. 

Mr.  McMahon  then  argued  and  discussed  the  following 
points,  viz: 

I  —  The  United  States  Court  had  exclusive  jurisdiction  of 
this  offence  of  manslaughter  committed  by  the  same  guilty  and 
felonious  act  which  the  state  courts  complain  of  as  murder. 
And  the  state  authorities  had  no  jurisdiction  in  the  premises. 
Because 

1.  By  the   constitution,  the  judicial  power  of    the  United 
States   government    extended   to    all    cases  of  admiralty    and 
maritime  jurisdiction.     (Constitution  of  U.  S.,  art.  3,  sec.  2.) 

2.  Under  the  terms  "  admiralty  and  maritime,"  are  compre- 
hended waters  which  are  navigable  for  the  purpose  of  commerce. 
(12  How.,  p.  443.) 

3.  The  term  also  includes  legislation  concerning   offences 
committed    inside   of  high   water   mark.     (United    States   v. 
Combs,  12  Peters,  p.  72.) 

4.  And  where  Congress  has  enacted  an  offence  committed 
on  tide  waters  and  made  it  cognizable  in  tie  United  States 


NEW  YORK.  SEPTEMBER,  1852. 


The  People  v  The  Sheriff  of  Westchester  Ceunty. 

Courts,  they  have  exclusive  jurisdiction  of  it.     (United  State? 
v.  Bevans,  3d  Wheat,  p.  333;  Martin  v.  Hunter,  I  Wheat.  304  ) 

5.  The  United  States  have,  by  the  act  of  1838,  regulated 
navigation  on  board  of  steam  boats,  and  created  an  offence  for 
causing  the  death  of  passengers  by  the  acts  of  the  captain 
and  officers,  and  that  act  renders  inoperative  any  state  legisla- 
tion  on  the  same  subject.     (Caldwell  v.  St.  Louis  Perpetual 
Ins.  Co.,  1  La.  Annual  Reps.  p.  85;  Houston  v.  Moore,  5  Wheat 
149;  Gibbons  v.  Ogden,  9  Wheat,  p.  562.) 

6.  The  act  of  Congress  in  such  case  is  the  supreme  law  of 
the  land.     (State  of  Rhode  Island  v.  State  of  Mass.,  12  Peters, 
647;   The  Huntress,  Daveiss,  82;  Bark  Chusan,  2  Story,  453.) 

II.  —  It  can  not  be   contended  that  running  this  boat  on  the 
shore    makes  the   offence  committed  on  it  cognizable  in  the 
:>tate  courts  because  of  its  being  committed  on  land  —  because, 

1.  The  corpus  delicti,  viz.,  the  gravaman  of  the  charge  as 
complained  of  in  the  Westchester  warrant,  was  committed 
while  navigating  the  boat  on  tide  waters;  and  the  consequence 
of  that  act,  viz.,  the  death  of  these  persons,  took  place  on  tide 
waters,  wherein  they  were  drowned.  (U.  S.  v.  Combs,  12 
Peters'  Reps.  p.  72,  decides  this  question;  Plummer  v.  Webb,  4 
Mason's  Reps.  383,  384;  Steele  v.  Thacher,  Ware's  Reps.  p. 
91.) 

III.  —  The  death  of  John  K.  Symonds,  by  being  burnt  on  the 
boat  after  it  was  run  on  the  shore,  can  not  be  the  support  ol 
the  jurisdiction  of  this  Westchester  proceeding  —  because, 

1.  The  death  of  John  K.  Symonds  on  the  boat,  and  of  the 
other  passengers  in  tide  waters,  was  the  result  of  the  same 
guilty  and  felonious  act,  which  can  not  be  separated  so  as  to 
make  different  convictions  for  each  death.  For  if  the  state 
authorities  have  jurisdiction  of  the  offence  of  causing  the  death 
of  John  K.  Symonds  on  the  boat  while  on  shore  and  thus  con- 
sidered in  Westchester  county,  and  if  the  United  States  have 
jurisdiction  of  the  offence  of  causing  ths  death  of  the  other 
passengers  who  jumped  in  the  water  and  were  drowned  —  the 
act  is  the  same  and  a  conviction  in  either  would  be  a  bar  to  the 
other  —  because, 


DECISIONS  IX  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 

"  No  man  can  be  put  in  jeopardy  of  life  and  limb  twice  for 
the  same  offence."  (JV.  F.  State  Constitution,  art.  1,  sec.  6; 
Constitution  of  U.  S.,  art.  5  of  Amendments.} 

The  word  offence  is  synonymous  with  guilty  and  felonious 
act. 

If  either  have  a  right  to  entertain  it,  then  quoad  hoc  the  juris- 
diction must  be  considered  as  concurrent. 

2.  Then,  if  concurrent,  inasmuch  as  the  United  States  au- 
thorities have  exercised  it  prior  to  the  state  authorities,  this 
necessarily  excludes  the  state  jurisdiction.  (Smith  v.  Mclver, 
9  Wheat.  532;  Ship  Robert  Fulton,  1  Paint's  C.  C.  Reps.  620; 
Sly  hoof  v.  Flitnatt,  1  Jlshmead,  p.  171;  Capt.  McKenzie's 
Case,  1  Legal  Observer,  pp.  227  and  367;  Slocum  v.  Mayberry, 
2  Wheat,  p  1;  Gelston  v.  Hoyt,  3  Wheat,  p.  246.) 

IV.  —  If  the  state  courts  have  a  right  to  entertain  jurisdiction 
of  the  offence,  then  we  say  that  the  facts  developed  in  the 
warrant  do  not  constitute  the  crime  of  murder  —  because. 

1.  The  second  subdivision  of  section  5  of  2  revised  statutes, 
page  746  (3d  ed.),  does  not  include  this  case.  For  that  clause 
has  reference  to  acts  of  violence  imminently  dangerous  in 
themselves  committed  by  the  guilty  party  for  the  purpose  of 
effecting  possibly  homicide,  and  certainly  personal  injury  to 
somebody  out  of  a  number  of  persons.,  thus:  shooting  a  loaded 
gun  into  a  crowd;  throwing  poisonous  matter  into  a  frequented 
well  or  spring,  or  into  flour  or  provision  exposed  for  sale,  or 
the  like.  The  act  itself  must  be  imminently  dangerous  to 
somebody  in  general  —  must  import  violence  and  must  evince  a 
depraved  mind.  The  idea  of  murder  implies  action,  and  no 
degree  of  negligence  or  omission  will  amount  to  murder. 

This  subdivision  is  the  statutory  definition  of  what  was  for- 
merly considered  as  coming  within  the  law  of  murder  where 
malice  was  inferred,  but  could  not  be  proven  expressly. 

In  this  case  at  bar  the  only  acts  complained  of  are  creation 
of  excessive  fires  and  of  excessive  steam,  neither  of  which  ex 
vi  termini  imports  violence  or  injury.  The  legislature  must 
have  thought  so,  because  they  classed  offences  arising  from 
deaths  occasioned  by  bursting  boilers  or  machinery  because  of 


NEW  YORK,  SEPTEMBER,   18,32. 


The  People  v.  The  Sheriff  of  Westchester  County. 

excessive  steam,  under  the  head  of  manslaughter  in  the  third 
degree.     (2  Rev.  Stat.,  p.  75 1,  sec.  16,  3d  ed. ) 

If  the  reading  contended  for  by  the  Westchester  authorities 
is  the  law,  then  there  was  no  necessity  for  the  action  of  the 
legislature  in  creating  this  offence  of  manslaughter  in  the 
third  degree;  because  there  can  be  no  reason  why  the  legis- 
lature should  make  any  between  creation  of  undue  quantity  of 
steam  and  excessive  fires.  The  bursting  of  boilers  is  not  an 
unusual  consequence  upon  too  great  a  pressure  of  steam,  and  is 
a  matter  which  would  force  itself  upon  the  legislature  for  pre- 
vention, while  the  other  is  a  novel  case,  and  not  therefore 
likely  to  be  included  in  any  statutory  criminal  definition. 
(Barbour's  Cr.  L.  67,  2d  ed} 

Mr.  Wells,  District  Attorney  of  Westchester  County,  in 
reply,  made  the  following  points,  viz: 

I. — The  facts  charged  in  the  warrant  constitute  the  crime  of 
murder  under  our  statute.  (2  R.  S.  657,  sec.  5,  subd.  2.) 

1.  The  conduct  of  the  defendants  as  detailed  in  the  warrant, 
though  not  intended  to  produce  death,  "  was   imminently  dan- 
gerous to  the  passengers,  and  evinced  a  depraved  mind,  regard- 
less of  human  life,"  within   the  meaning  of  that   subdivision 
of  the  statute. 

2.  The  lives  of  the  deceased  wore  lost  by  that  conduct  oi 
the   defendants.     They  persisted  in   doing  an  act    manifestly 
dangerous  to  human  life,  regardless  of  the  consequences  and 
against  the  remonstrances  of  the  passengers,  and  death  resulted 
from  the  act.     This  was  murder.     ( 1  Russell  on  Crimes,  487.) 

3.  An  express  design  to  take  life,  or  even  to  do  bodily  harm, 
is  not  necessary  to  constitute  murder  under  this  statute.      Im- 
plied malice  may  still  be  sufficient   in  all  cases  where  it  would 
have  constituted  the  killing  murder  before  the  revised  statutes, 
except  in  the  single  case  of  an  undesigned  killing,  while  the 
slayer  is  committing  a  misdemeanor  (Revisor's  notes,  3    R.    S 
809,  2d  ed.;  People  v.  Rector,  19  Wend.  592:  People  \   Enoch, 
13  Wend.  173, 174;  People  v.  Shorter,  4  Barb.  470.) 

4.  The  probable  consequence  of  defendants'  acts  on  board  a 


570  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  The  Sheriff  of  Westchester  Couuty. 

steam  boat  crowded  with  human  beings,  was  the  loss  of  lives. 
And  the  prisoners  are  presumed  to  intend  the  probable  con- 
sequences of  their  own  voluntary  and  willful  acts.  Those  acts 
"  indicated  a  heart  regardless  of  social  duty,  and  fatally  bent 
on  mischief."  which  is  the  criterion  of  murderous  intent  (Fos- 
ter's Crim.  Law.  p.  257.) 

II. — Even  if  it  should  be  held  that  the  case  is  not  murder, 
then  it  is  submitted,  that  the  acts  of  the  prisoners  charged  in 
the  warrant,  constitute  manslaughter  in  the  first  degree  (2  R. 
J.  661,  sec.  6,subd.  8.) 

1.  Whatever  amounts  to  a   public  wrong,  is  indictable  as  a 
misdemeanor,  ex.  gra.,  keeping   a  quantity  of  gunpowder  in 
a  place  where  there  is  apparent  danger  of  mischief,  is  a  nuis- 
ance, and   is  indictable   as  a  misdemeanor,  though  no  injury 
result.     (People  v.  Sands,  1  John.  78.) 

So  riding,  or  going  armed  with  unusual  or  dangerous 
weapons,  to  the  terror  of  the  people,  is  an  offence  at  common 
law.  (State  v.  Huntley,  3  IredeWs  Reps.,  4 18 ;  1  Russell  on 
Crimes,  46  note.} 

The  above  and  numerous  other  cases  which  might  be  put, 
illustrate  the  principle  that  whatever  conduct  is  calculated  to 
endanger  public  safety  or  to  disturb  public  peace  or  quiet,  is  a 
misdemeanor. 

2.  The  racing  of  steam  boats  with  passengers  on  board,  is  a 
misdemeanor  at  common  law,  also  by  statute.     ( 1  R.  S.  3d  ed. 
863,  sec.  24,  laws  of  1839.)     The  prisoners  loaded  their  boat 
with  passengers,  they  induced  them  to  go  on  board  and  commit 
their  lives  to  the  care  of  those  having  charge  of  the  boat,  un- 
der pledge  of  safe  transportation,  and  then  raised  an  undue  and 
unsafe  quantity  of  steam,  and  in  so  doing,  made  excessive  fires, 
and  did  not  use  ordinary  prudence  in  the  management  thereof, 
tor  the  purpose  of  racing   with  a  rival  boat.     Passengers   be- 
came alarmed  and  remonstrated  against  it.     The  relators  paid 
no  attention  to  the   remonstrances,  but   obstinately  persevered 
in  their  conduct  till  the  boat,  overheated  by  an  excess  of  badly 
managed  steam  and  fire,  was  consumed,  and  nearly  one  hund- 


NEW  YORK,  SEPTEMBER,  1852.  57 j 

The  People  ».  The  Sheriff  of  Westchester  County. 

red  lives  were  thereby  lost.     The  facts  are  no  doubt  a  misde- 
meanor. 

III. — If  the  defendants  are  guilty  of  neither  of  the  foregoing 
offences,  it  may  be  a  question  whether  the  case  does  not  fall 
under  the  head  of  manslaughter  in  the  third  degree.  (2  R. 
S.p.  661,  sec.  13,3d  ed.) 

1.  The  voluntary  killing  of  a  human  being  by  the  act,  pro- 
curement or  culpable  negligence  of  another,  while  such  other 
is  engaged  in  the  commission  of  a  trespass  or  other  injury  to 
private  rights,  or  property,  or  engaged  in  an  attempt  to  commit 
such  injury,  shall  be  deemed  manslaughter  in  the  3d  degree. 

2.  The   conduct  of  the   prisoners  in   persisting    in  the   acts 
charged  in  the  warrant  after  remonstrances  from  the  passengers, 
was    clearly    an   injury  to   their    private  rights.     It    was  ac- 
tionable— it  was  not  damnum  absquc  injuria. 

IV.— The  provisions  of  2  R.  S.  751,  sec.  19  (3d  ed.),  de- 
fining manslaughter  in  the  fourth  degree,  are  not  limited  to 
cases  where  the  death  is  the  immediate  result  of  the  crhninal 
act;  but  that  section  applies  to  all  cases  where  the  death  can 
be  clearly  traced  to  the  criminal  negligence,  &c.,  as  its  cause, 
for  it  is  the  certainty,  and  not  the  nearness  of  connection 
between  the  cause-  and  effect,  that  fixes  responsibility. 

V. — If  the  judge  shall  be  satisfied  that  any  criminal  offence 
is  sufficiently  charged  in  the  warrant,  he  should  remand  the 
prisoners  to  the  sheriff  to  be  by  him  conveyed  before  the  officer 
who  issued  the  warrant,  to  be  dealt  with  according  to  law. 

1.  The  existence  and  validity  of  the  warrant  are  the  only 
facts  traversable  on  the  return  of  the  habeas  corpus.     (People 
v.  McLeod,  1  Hill,  404;  People  v.  Cassels,  5  Hill,  167,   168; 
Bennac  v.  People,  4  Barb.  31;  2  R.  S.  663,  sec.  54.  3d  ed.,  sec. 
39,  original.) 

2.  The  power  to  bail  on  this  writ  is  confined  to  the  case  of 
a  commitment,  and  does  not  extend  to  the  case   of  a  party 
arrested  under  valid  process.     In  such   a   case  the  writ  must 
wait  until  the  powers  of  the  magistrate  who  issued  the  warrant 
are  spent.     This  writ  does  not  arrest  regular  proceedings.    (2 
R  S.  664,  sec.  58,  59,  3d  ed.  and  p.  794,  sec.  11.) 


(572  DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 

VI. — The  United  States  Courts  have  no  jurisdiction  of  the 
offence  charged  in  the  warrant. 

I. — This  case  is  not  cognizable  under  the  grant  of  power  to 
regulate  commerce,  for  the  Henry  Clay  was  engaged  in  a 
navigation  within  the  jurisdiction  of  the  State  of  New  York. 
(  U.  S.  Constitution,  art.  1  sec.  8 ;  Gibbons  v.  Ogden,  9  Wheat., 
194.) 

II.  Nor  under  the  power  to  define  and  punish  felonies  on  the 
high  seas. 

(a.)  The  place  where  the  offence  was  committed  was  not  on 
the  high  seas.  (1  Kent,  367  and  note  a.) 

(b.)  The  power  to  define  ex  vi  termini,  merely  authorizes 
congress  to  fix  and  limit  the  definition  of  offences  which  were 
already  felonious,  and  does  not  authorize  the  creation  of  any 
new  felony  such  as  is  designated  in  the  act  of  congress  of  1838, 
chapter  191,  section  12.  (  United  States  v.  Smith,  5  Wheat.  158.) 

III.  The  act  of  1838,  chapter  191,  section  12,  does  not  apply 
to  this  case. 

(a.)  It  was  passed  in  execution  of  the  power  of  congress  to 
regulate  commerce,  and  therefore  does  not  govern  steam  boats 
navigating  exclusively  within  the  limits  of  any  one  state. 
(Fitch  v.  Livingston,  4  Sandford  S.  C.  Reps.  p.  507.) 

(b.)  There  is  ample  scope  for  the  operation  of  that  act  by 
confining  it  to  commerce  with  foreign  nations  and  among  the 
several  states. 

IV.  The  place  where  the  offence  was  committed  is  within  the 
body  of  a  county  and  in  the  limits  of  a  state,  and  that  state 
courts  have  jurisdiction  of  all  crimes  there  committed.    (  U.  S. 
v.  Beavins,  3.  Wheat.  387;  U.  S.  v.  Grush,  5  Mason  C.  C.  Reps. 
290;  2  Story  on.  Constitution,  sec.  1673.) 

(a.)  The  United  States'  courts  will  not  exercise  admiralty 
jurisdiction  in  criminal  cases  without  a  particular  legislative 
provision  in  the  case.  (1  Kent's  Corns.  363;  U.  S.  v.  Coolidge, 
1  Wheat.  415.) 

(b.)  The  Crimes'  Act  of  1790,  chapter  9,  section  8,  and  the 
act  of  1825,  chapter  73,  section  26,  reserve  the  state  juris- 
diction. 


NEW  YORK,  SEPTEMBER,  1852. 


The  People  v.  The  Sheriff  of  Westchester  County. 

V.  Should  it  be  held  that  the  jurisdiction  of  the  national  anil 
of  the  state  courts  over  this  offence   is  concurrent,  still  the 
United  States'  courts  have  not   by  any  action  taken  by  them 
obtained  an  exclusive   jurisdiction  over  the  case  of  the  pri- 
soners. 

1.  This  case  is  not  before  the  United  Stales  court.     It  has  as 
yet,  no  power  over  the  prisoners,  and  will  get  none  until  an 
indictment  is  found.     It  will  then,  and  not  until  then,  have 
power  to  adjudge  the  cause.     (19  Johns.  39.) 

2.  The  recognizance  given  by  the  prisoners  is  only  an  obli- 
gation that  they  will  put  themselves  into  the  power  of  the  dis- 
trict court  and  submit  to  its  judicial  action.     Till  they  shall  ac- 
tually appear  in  that  court,  the  court  will  obtain  no  jurisdiction 
over  their  persons;  and  this  is  necessary  to  make  that  jurisdic- 
tion exclusive  of  the  action  of  the  state  courts.     (Jlcts  of  Con- 
gress of  1842,  chap.  188,  sec.  1;  Stat.  at  Large,  vol.  5,  p.  517.) 

VI.  The  proper  way  for  the  prisoners  to  raise  the  objection 
to  the  state  jurisdiction,  is  by  demurrer  or  by  plea  to  the  juris- 
diction when   an    indictment   shall   have  been    found   against 
them. 

Ralph  Lnckwood,  on  same  side,  in  addition  to  the  points  raised 
by  his  associate,  urged  the  following  distinction,  viz: 

That  the  charge  as  presented  in  the  Westchester  warrant  was 
clearly  one  of  murder.  That  conceding  the  crime  to  have  been 
committed  within  the  jurisdiction  of  the  admiralty,  yet  as  the 
specific  offence  was  one  of  murder  committed  on  the  waters 
within  the  jurisdiction  of  a  state  (infra  corpus  comitatus)  and 
as  congress  had  not  yet  legislated  upon  any  criminal  act  amount- 
ing to  murder,  therefore,  under  the  authority  of  U.  S.  v.  Bevans, 
(in  3d  Wheaton's  Reps.  p.  336,)  the  case  at  bar  was  clearly 
without  the  jurisdiction  of  the  United  State  courts,  and  the  state 
courts  had  therefore,  until  congress  so  legislated,  exclusive 
jurisdiction  of  the  offence. 

The  counsel  then  discussed  at  some  length  the  further  position 
that  the  charge  in  the  Westchester  warrant  was  something 
more  than  what  was  intended  to  be  comprehended  within  the 
United  States'  complaint. 


(574  DECISIONS  IN  CRIMINAL  CASES. 

The  People  v.  The  Sheriff  of  Westchester  County. 

The  counsel  illustrated  this  by  referring  to  the  various  mean- 
ings of  the  term  misconduct,  used  in  the  twelfth  section  of  act 
of  congress  of  1838.  He  further  insisted  that  the  court  had 
no  right  now  to  determine  whether  these  parties  could  be  con- 
victed of  murder;  that  was  for  the  jury.  It  was  only  necessary 
to  inquire  whether  the  offence  was  presented  as  one  of  murder; 
if  so,  the  United  States'  courts  had  no  jurisdiction.  He  also 
commented  on  5th  Howard,  433,  and  9th  Howard,  568,  and 
maintained  that  the  guilty  and  felonious  act  might  give  rise  to 
two  offences  and  consequently  two  punishments. 

Charles  O'Conner,  in  reply,  discussed  the  following  points: 
First  Point. — The  attempt  to  bring  this  case  within  the  ope- 
ration of  the  second  subdivision  of  the  section  defining  murder, 
is  not  warranted  by  law  or  reason.    (2  R.  S.  657,  §  5,  subd.  2.) 

1.  The  offence  defined  in  that  subdivision  can  not  be  com- 
mitted "rf  bodily  harm  is  not  intended."     (Revisers'1  Notes,  3. 
R.  S.,  809,  2d  ed.-}  Md.  R.  283;  4  EL  Com.  192.) 

2.  It  is  not  pretended  in  the  district  attorney's  complaint  as 
recited  in  the  warrant,  that  such  harm  was  intended,  nor  has 
there  ever  been  an  imputation  to  that  effect. 

3.  The  whole  section  aimed  at  repudiating  the  doctrine  of 
constructive  murder  except  in  a  single  case  not  relevant  to  the 
present  inquiry,  i.  e.,  where  the  person  causing  the  death  was 
at  the  time  engaged  in  the  commission  of  a  felony.     (2  R.  S. 
657,  §  5,  subd.  3.) 

Second  Point. — The  matters  charged  in  the  complaint  as 
recited  in  the  warrant,  do  not  constitute  the  offence  of  man- 
slaughter in  any  of  its  grades. 

I. — In  order  to  constitute  the  crime  of  manslaughter  in  the 
first  degree,  it  would  be  necessary  to  show  that  the  acts  or  omis- 
sions imputed  to  the  relators,  and  which  are  alleged  to  have  oc- 
casioned death,  occurred  while  they  were  engaged  in  the  per- 
petration of  some  crime  or  misdemeaner.  (2  R.  S.  661,  §6.) 

1.  Although  the  generation  of  such  an  amount  of  steam  "  as 
to  burst  or  break"  the  boiler  or  apparatus,  is  under  certain  cir- 
cumstances a  misdemeanor,  (2  R.  S.  780,  §  27,  3d  ed.)  where 
this  consequence  does  not  ensue,  no  offence  is  committed. 


NEW  YORK,  SEPTEMBER,   18-32.  375 

The  People  v.  The  Sheriff  of  Westchester  County. 

2.  There  is  no  pretence  that  any  such  consequence  ensued, 
or  that  there  would  have  been  any  offence  against  law  in  any- 
thing which  was  done  or  omitted,  if  no  death  or  personal  injury 
had  occurred. 

II.  None  of  the  acts  or  omissions  imputed  to  the  prisoners 
bear  the  least  resemblance  to  the  circumstances  which  consti- 
tute manslaughter  in  the   second    or   third  degrees,  (2  R.  S. 
661,  §§11,  12,  13,  14,  15,  16,  17,)  unless  such  resemblance  can 
be  found  in  §  16. 

III.  The  essence  of  the  offence  created  by  §  16  is  the  creation 
of  "  such  an  undue  quantity  of  steam  as  to  burst  or  break  the 
boiler  or  other  apparatus." 

1.  Nothing  of  this  kind  is  charged 

2.  Nothing  of  this  kind  could  have  been  charged.     There  is 
no  pretence  for  it. 

IV.  The    comprehensive    provisions  of  §  19,  defining  man- 
slaughter in  the  fourth  degree,  do  not  embrace  the  case  alleged 
against  the  relators. 

1.  It  applies  only  to  acts  or  omissions  which  directly  assail 
life,  and  by  their  own  immediate  effects  produce  its  extinction 

(a.)  The  circulation  by  inadvertence  of  a  false  alarm  which 
should  cause  a  person  to  cast  himself  into  the  sea  and  thereby 
cause  his  own  death  is  an  illustration  of  this  point.  Hundreds 
of  analogous  illustrations  might  be  supposed.  Causa  proximo, 
non  remota  spectatur.  (1  East.  PL  Cr.  265;  Col.  Ins.  Co.  v. 
Lawrence,  10  Peters,  508;  Peters  v.  Warren  Insurance  Co.  14  ib. 
109.) 

(b.)  The  defendants  are  not  charged  with  having  set  fire  to 
the  boat.  It  is  said  that  they  did  not  keep  with  due  care  the 
fire  lit  for  a  lawful  purpose.  It  is  alleged  as  a  consequential 
result,  that  the  boat  took  fire.  If  this  was  so,  and  as  alleged, 
one  dea'ch  ensued  from  that  cause  only,  it  could  not  be  alleged 
that  th*;  lefendants  "  killed"  that  person. 

Tfn  •!  Point. — No  crime  or  misdemeanor  defined  in  any  sta- 
tute )/  '.L's  state  or  known  to  the  common  law,  is  shown  to  have 
been  .vry.aitted  by  the  defendants. 

F&urth   Point. — If  any  offence  shall  be  deemed  to  be  duly 


67fi 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 


charged  in  the  complaint,  the  judge  having  cognizance  under 
this  writ  should  admit  the  defendants  to  bail.  (2  R.  S.  569, 
§68.) 

Fifth  Point. — The  courts  of  the  United  States  have  exclusive 
cognizance  of  the  offence  imputed  to  the  defendants. 

I.  The  judicial  power  of  the  United  States  extends  "  to  all 
cases  of  admiralty  and  maritime  jurisdiction.1'     (Const.  U.  S 
art.  3,  §  1;  3  Story  Com.  on  Con.  §  1745.) 

II.  Admiralty  and  maritime  jurisdiction  extends  to  all  crimes 
and  offences  committed  as  well  upon  arms  of  the  sea  and  tide 
waters  within  the  limits  of  a  particular  state  as  upon  the  high 
seas.     (United  States  v.  Bevan,  3  Wheat.  336;  Whart.  Criminal 
Laws,  85  ) 

III.  This  grant  of  power  to  the  government  of  the  United 
States  is  not  in  its  own  nature  exclusive  of,  but  on  the  contrary 
is  concurrent  with  the  like  power  of  legislation  for  the  sup- 
pression of  crime  by  the  states.    But  wherever  congress  in  cases 
of  concurrent  power  acts  upon  and  assumes  to  regulate  the  sub- 
ject, such  exercise  of  the  power  renders  it  thenceforth  practi- 
cally exclusive.    It  prevents  future  legislation  over  the  subject 
of  the  states,  and  supersedes  all    existing  state  legislation  in 
relation  to  it.  (Jack  \.  Martin,  12  Wend.  311,  317;  In  re  Kir/c, 
4  Leg.  Ob.  Briggs'  case,  16  Peters.)  , 

IV.  By  the  act  of  July,  1838,  statutes  at  large  of  U.  S.,  vol. 
5,  p.  306,  congress  has  regulated  this  whole  subject.     And  as 
a  necessary  consequence  the   relators   can  only  be  proceeded 
against  under  that  act  and  in  the  courts  of  the  United  States. 

V.  The  objection  to  the  action  of  the  state  courts  is  not  tech- 
nical nor  evasive.     The  relators  are  actually  under  prosecution 
in  the  courts  of  the  United  States,  and  held  to  answer  therein. 
It  is  contrary  to  natural  justice  and  to  the  fundamental  prin- 
ciples of  the  criminal  law,  as  well  as  to  an  express  provision 
of  our  own  state  constitution,  that  two  distinct  punishments 
should  be  inflicted  for  the  same  offence.     (2  R.  S.  of  r801,  p. 
14,  as  to  boundaries  ofYonkcrs.) 

The  court  held  the  matter  over  until  the  6th  day  of  Septem- 
ber, 1852,  when  the  following  decision  was  rendered: 


NEW  YORK,  SEPTEMBER,   1852 


The  People  v.  The  Sheriff  cfWestchester  County. 

EDMONDS,  J.  —  It  appears  on  the  return  of  the  habeas  cor- 
pus, that  the  prisoners  were  held  in  custody  on  a  .warrant 
issued  by  one  of  our  state  magistrates,  charging  them  with 
the  crime  of  murder,  in  causing  the  death  of  certain  per- 
sons named,  and  that  they  have  already  been  arrested  on  pro- 
cess issued  out  of  the  United  States,  for  the  same  act,  on  a 
charge  of  manslaughter. 

There  are  two  important  questions  presented  in  this  matter, 
one,  whether  the  offence  charged  in  the  warrant  is  murder  under 
our  statute,  and  the  other,  whether,  if  it  is,  the  offence  is  not 
under  the  law  of  congress  cognizable  by  the  federal  courts  to 
the  exclusion  of  the  state  courts. 

There  is  another  question  which  it  may  be  necessary  to  exa- 
mine, and  that  is,  whether  the  offence,  if  not  murder,  s  not 
manslaughter  under  the  state  statute. 

The  question  of  jurisdiction  is  the  most  material  one,  for  if 
the  state  courts  have  not,  under  the  circumstances,  cognizance 
of  the  offence  charged,  the  defendants  are  entitled  to  an  abso- 
lute discharge  from  their  arrest;  whereas,  otherwise,  the  ques- 
tion may  be  merely  whether  they  shall  be  let  to  bail  or  nor. 

I  begin  by  saying  that  I  can  not  recognize  the  distinction 
taken  by  one  of  the  counsel,  that  because  congress  has  n  )t 
made  the  offence  which  its  statute  aimed  at,  murder,  but  only 
manslaughter,  therefore  the  state  tribunals  are  at  liberty  to  take 
cognizance  of  the  matter  if  the  state  laws  elevate  the  crime  to 
that  grade.  That  would  be  making  the  punishment,  and  not 
the  offence,  the  standard  of  jurisdiction,  and  would  permit  the 
state  authorities,  by  increasing  the  penalty,  to  obtain  juris- 
diction over  offences  clearly  cognizable  only  by  the  federal 
courts. 

It  is  the  nature  and  quality  of  the  act,  and  not  the  extent  of 
the  penalty  or  punishment,  which  is  to  be  the  measure  of  the 
jurisdiction.  And  in  this  fact,  I  must  look  into  the  warrant  to 
see  what  that  is. 

That  sets  forth  that  the  steamer  Henry  Clay  was  engaged  in 
carrying  passengers  on  the  Hudson;  that  on  one  of  her  trips, 
with  certain  passengers  on  board,  she  caught  fire  and  was 


o7S 


DECISIONS  IN    CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 

consumed,  whereby  the  persons   named   in  the  warrant  were 
killed. 

After  this  preliminary  statement  of  facts,  the  warrant  charges 
that  the  prisoners,  who  then  had  charge  of  the  boat,  "  for  the 
purpose  of  excelling  in  speed"  another  boat,  "  or  for  the  pur- 
pose of  increasing  the  speed"  of  their  steamer,  "  did  create  or 
allow  to  be  created  an  undue  or  an  unsafe  quantity  of  steam, 
and  in  so  doing  did  make  or  cause  or  allow  to  be  made  exces- 
sive firesrand  did  not  use  ordinary  prudence  in  the  management 
of  said  fires,"  but,  remonstrated  with,  "  for  a  long  while,  con- 
tinued the  same,"  in  consequence  whereof  the  boat  look  fire, 
all  the  deaths  ensued,  and  it  concludes  that  the  deceased  were 
murdered  by  the  prisoners  by  an  act  which  was  "  eminently 
dangerous  to  others,  and  evinced  a  depraved  mind,  regardless 
of  human  life,  "  though  without  any  premeditated  design  to 
effect  the  death  of  any  particular  individual." 

The  proceedings  of  the  United  States  authorities  charge  that 
the  defendants  "  by  their  misconduct,  negligence  or  inattention 
to  their  duties  on  board  the  said  steam  boat  did  cause  the  death" 
of  some  of  the  same  persons. 

The  proceedings  in  the  United  States  courts  are  under  the 
law  of  congress,  which  enacts  that  every  captain,  engineer, 
pilot  or  other  person  employed  on  board  any  steam  boat,  &c., 
by  whose  misconduct,  negligence  or  inattention  to  his  or  thei-r 
respective  duties,  the  life  or  lives  of  any  person  or  persons  on 
board  the  said  vessel  may  be  destroyed,  shall  be  deemed  guilty 
of  manslaughter.  (5  United  States  Statutes  at  Large,  306, 
sec.  12.) 

The  proceedings  in  the  state  courts  are  under  the  state  sta- 
tute, which  enacts  that  the  killing  of  a  human  being  without 
the  authority  of  law,  when  perpetrated  by  an  act  imminently 
dangerous  to  others,  evincing  a  depraved  mind,  regardless  of 
human  life,  although  without  any  premeditated  design  to  effect 
the  death  of  any  particular  individual,  is  murder. 

And  the  question  before  me  is,  whether  they  are  liable  to  be 
proceeded  against  in  the  state  courts,  or  whether  those  courts 
are  not  ousted  of  their  jurisdiction  by  that  of  the  federal  courts. 


NEW  YORK,  SEPTEMBER,  185* 


The  People  v.  The  Sheriff  of  WestchcBter  County. 

The  fact  that  the  federal  courts  have  already  instituted  pro- 
ceedings, and  thus  assumed  jurisdiction,  is  not  material  on  this 
inquiry;  for  it  is  the  termination  and  not  the  commencement 
of  proceedings  in  one  court  which  may  be  pleaded  in  another. 
It  is  the  judgment,  and  not  the  proceedings  preliminary  thereto, 
which  is  a  bar  to  a  second  judgment. 

It  is  no  unusual  thing  for  proceedings  to  be  instituted  for  the 
same  cause  of  action  in  two  different  courts  having  concurrent 
jurisdiction,  nor  is  it  unusual,  where  the  United  States  and  the 
State  courts  have  concurrent  jurisdiction,  for  them  to  allow  a 
judgment  rendered  in  one  to  be  a  bar  to  the  recovery  of  a  judg- 
ment in  the  other.  (1  Kent's  Com.  399.) 

It  is  therefore  unnecessary  for  me  to  dwell  upon  the  conside- 
ration which  was  pressed  on  the  argument,  that  the  prisoner 
may  be  in  danger  of  being  twice  convicted  for  the  same  offence, 
for  the  time  to  raise  the  objection  has  not  yet  arrived,  and 
when  it  shall  arrive,  the  several  courts  will  be  able  to  afford 
the  adequate  relief  against  what  would  be  so  flagrant  a  wrong. 

The  jurisdiction  of  the  federal  authorities  over  the  subject  is 
claimed  to  rest  on  that  clause  of  the  constitution  which  gives 
congress  the  power  "  to  regulate  commerce  among  the  several 
states,"  (art.  1,  sec.  8,)  and  that  which  gives  to  the  United 
States  courts  judicial  power  over  "  all  cases  of  admiralty  and 
maritime  jurisdiction."  (Jlrt.  3,  sec.  2  ) 

It  is  well  settled  that  until  congress  does  exercise  its  power 
over  a  subject  properly  within  its  jurisdiction,  the  previously 
existing  authority  of  the  state  to  act  upon  the  same  subject  is 
unaffected.  It  is  only  necessary  to  refer  in  illustration  to  the 
question  of  state  insolvent  laws,  determined  in  Sturgiss  or 
Crowningshield,  4  Wheat.  122. 

But  whether  in  all  cases  when  congress  does  take  cognizance 
of  a  subject,  it  is  to  the  exclusion  of  all  state  authority  on  it,  is 
another  question,  and  not  perhaps  quite  so  well  settled. 

The  rule  is  very  well  stated  by  the  Supreme  Court  of  this 
state,  in  the  case  of  The  United  States  v.  Lathrop,  ( 17  John.  R. 
9.)  There  it  is  said:  "  The  jurisdiction  of  the  state  courts  is 
in  no  instance  excluded  where  they  had  a  pre-existing  juris- 


680 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 


diction,  except  in  those  cases  of-  a  national  character,  such  as 
admiralty  and  maritime  matters,  and  suits  against  ambassadors 
and  other  public  ministers,  consuls,  &c.,  but  the  jurisdiction  of 
the  state  courts  is  excluded  in  cases  of  crimes  and  offences 
cognizable  under  the  authority  of  the  United  States,  and  in  suits 
for  penalties  and  forfeitures  incurred  under  the  laws  of  the 
United  States." 

But  this  rule  leaves  the  question  open  in  this  case,  whether 
the  offence  with  which  these  prisoners  are  charged  is  not  a 
matter  of  "  admiralty  and  maritime  jurisdiction,"  and  whether 
it  is  not  cognizable  under  the  authority  of  the  United  States," 
and  therefore  excluded  from  the  cognizance  of  the  State 
courts'? 

It  is  not  easy,  from  the  reports,  to  ascertain  where'  the 
dividing  line  is.  In  some  cases  it  is  very  faint,  and  not  easily 
definable,  as  in  cases  of  collision -on  tide  waters  and  maritime 
contracts.  (See  Waring  v.  Clarke,  5  How.  U.  S.  R.  441.) 

In  other  cases  it  is  more  marked,  as  in  the  case  of  the  recla- 
mation of  fugitive  slave's,  where  it  is  held  that  the  exercise  of 
the  power  by  the  nation  is  exclusive  of  all  interference  by  the 
state.  (Prigg's  Case,  36  Peters,  539.) 

And  in  others,  it  is  in  a  measure  apparently  obliterated,  as 
in  case  of  imposition  of  taxes,  and  the  government  of  the  mi- 
litia, where  both  authorities  have  jurisdiction  under  certain 
circumstances.  (Houston  v.  Moore,  5  Wheat.  1.) 

In  The  United  States  v.  Bevans,  (3  Wheat.  336,)  it  was  held 
that  the  United  States  courts  had  not  jurisdiction  of  the  crime 
of  murder,  committed  on  board  a  national  vessel  in  the  harbor 
of  Boston,  because  it  was  committed  within  the  jurisdiction  of 
a  state,  and  the  law  of  congress  gave  the  United  States  courts 
cognizance  only  of  "  offences  committed  on  the  high  seas  or  in 
any  river,  haven,  basin  or  bay  out  of  the  jurisdiction  of  any 
particular  state."  It  was  also  held  that  the  cession  of  admi- 
ralty and  maritime  jurisdiction  to  the  federal  courts  did  not 
give  them  cognizance  of  the  offence,  because  that  could  not  be 
construed  into  a  cession  of  the  wraters  on  which  those  cases 
arise,  and  the  power  of  exclusive  legislation  (which  is  juris- 


NEW  YORK,  SEPTEMBER,   1852. 


The  People  v.  The  Sheriff  of  Westchester  County. 

diction)  is  united  with  cession  of  territory,  and  the  general 
jurisdiction  over  the  place  adheres  to  the  territory  as  a  portion 
of  the  state  sovereignty  not  given  away. 

In  one  aspect  that  case  is  like  that  now  under  my  consider- 
ation, and  decides,  at  all  events,  that  the  mere  grant  of  admi- 
ralty and  maritime  jurisdiction  does  not  exclude  state  authority. 
But  there  was  another  point  in  that  case,  and  that  was,  that 
congress  had  not  legislated  as  to  the  offence  when  committed 
within  state  territory.  Since  then  congress  has  supplied  the 
defect,  and  legislated  for  such  a  case.  But  still  it  is  unsettled 
whether,  since  congress  has  done  so,  the  state  is  excluded  from 
all  authority,  and  that  is  the  precise  question  before  me;  and  it 
is  a  grave  one  when  we  consider  the  language  of  the  court, 
''That  exclusive  legislation  (which  is  jurisdiction)  is  united 
with  cession  of  territory." 

There  has  been  no  cession  of  territory  at  the  place  where  the 
offence  charged  in  the  case  was  committed;  and  when  we  con- 
sider that  the  argument  urged  by  the  prisoners  here,  if  allowed 
to  prevail,  will  necessarily  deprive  the  state  of  all  power  of 
legislation  on  the  subject  of  steam  boats  in  our  navigable  wa- 
ters, the  point  becomes  too  serious  to  be  lightly  or  summarily 
disposed  of. 

On  the  other  hand,  it  was  held  in  Houston  v.  Moore,  supra, 
that  in  every  case  in  which  the  state  tribunals  should  not  be 
expressly  excluded  by  the  acts  of  the  national  legislature,  they 
would  of  course  take  cognizance  of  the  causes  to  which  these 
acts  might  give  birth,  and  that  the  grant  of  jurisdiction  gene- 
rally was  not  of  itself  sufficient  to  rest  an  exclusive  jurisdiction. 
Chancellor  Kent  (  1  Com.  400)  sums  up  his  examination  of  the 
question  in  these  words:  "The  conclusion,  then,  is,  that  in 
judicial  matters  the  concurrent  jurisdiction  of  the  state  tri- 
bunals depends  altogether  upon  the  pleasure  of  congress,  and 
may  be  revoked  and  extinguished  whenever  they  think  proper, 
in  every  case  in  which  the  subject  matter  can  constitutionally 
be  made  cognizable  in  the  tederal  courts,  and  that  without  an 
express  provision  to  the  contrary,  the  state  courts  will  retain  a 

VOL.  L  86 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 


concurrent  jurisdiction,  in  all  cases  where  they  had  jurisdiction 
originally  over  the  subject  matter." 

Our  court  for  the  Correction  of  Errors  in  Delqfield  v.  State 
of  Illinois,  (2  Hill,  164,)  took  the  same  view  of  the  question. 
Branson,  J.,  in  delivering  ihe  opinion  of  the  court,  says: 
"  There  is,  I  think,  no  instance  in  the  whole  history  of  the  law, 
where  the  mere  grant  of  jurisdiction  to  a  particular  court,  with- 
out any  words  of  exclusion,  has  been  held  to  oust  any  other 
court  of  the  powers  which  it  before  possessed."  In  stating  his 
views  he  alludes  to  criminal  cases,  and  denies  that  a  person, 
who  within  our  territory  commits  a  crime  which  is  cognizable 
in  the  United  States  courts,  is  thereby  exempt  from  being  pro- 
secuted in  the  state  courts,  and  he  remarks,  "  probably  no  one 
is  prepared  to  carry  the  doctrine  of  exclusive  jurisdiction  so 

far." 

From  this   examination,  it  is  by  no-  means  certain  that  the 

state   authorities   have  not   jurisdiction  although   the   federal 
authorities  have  claimed  and  exercised  it. 

There  is  still  another  view  of  the  case,  in  which  it  may  be 
that  the  state  tribunals  may  have  jurisdiction  in  cases  like  this. 
Something  more  is  necessary  to  convict,  under  the  state  juris- 
diction, than  under  that  of  the  federal  authorities.  In  the 
latter,  any  misconduct,  negligence  or  inattention,  which  results 
in  a  sacrifice  of  life,  may  be  enough  for  conviction,  but  under 
the  former  more  must  necessarily  be  proved,  namely,  some  act 
that  evinces  a  depraved  mind,  regardless  of  human  life  —  some 
act  imminently  dangerous,  not  one  which  may  or  may  not 
harm,  but  one  that  must  almost  necessarily  do  so.  And  it  may 
be  well  that  that  is  an  offence  in  respect  to  which  congress  has 
not  legislated,  so  that  in  any  view,  the  state  authority  may  be 
untrammeled.  I  am  not  so  clear  that  it  may  not  be  so,  as  to 
leave  no  doubt  on  my  mind.  From  the  views  I  have  thus 
stated,  it  will  be  perceived  that  I  am  by  no  means  clear  that 
the  state  courts  have  not  jurisdiction.  If  I  was  satisfied  of 
that,  the  prisoners  would  be  entitled  to  their  discharge.  But 
as,  to  say  the  least,  it  is  a  matter  of  doubt,  it  is  my  duty  to 
hold  them  until  the  question  can  be  determined  in  the  proper 


NEW  YORK,  SEPTEMBER,  18-7Z.  ggg 

The  People  v.  The  Sheriff  of  Westchester  County. 

form.  This  result  renders  it  necessaiy  for  me  to  examine  the 
other  question  raised  —  whether  any  crime  against  our  laws  is 
charged  in  the  warrant,  and  if  so,  what  one,  so  as  to  determine 
in  what  manner  the  prisoners  shall  be  tried.  That  involves  the 
question  whether  an  unlawful  killing  by  an  act  imminently 
dangerous  and  evincing  a  depraved  mind,  regardless  of  human 
life,  of  itself  constitutes  the  crime  of  murder  under  our  statute, 
and  whether  it  is  not  also  necessary  to  prove  an  intention  to 
hurt  some  one.  The  revisors,  in  their  notes  to  this  statute,  say 
it  was  not  intended  there  should  be  any  departure  from  the 
then  existing  law,  except  as  to  implied  malice,  and  for  this 
particular  enactment  they  refer  to  Hale's  Pleas  of  the  Crown. 
There  it  is  stated  that  the  intent  to  do  bodily  harm  is  necessary, 
in  such  a  case,  to  constitute  murder,  and  that  writer  in  illustra- 
tion, instances  the  case  of  a  man  who,  knowing  that  people 
are  passing  along  the' street,  throws  a  stone  or  shoots  an  arrow 
over  the  house  or  wall  with  the  intent  to  do  hurt  to  people,  and 
some  one  is  thereby  slain —  this  is  murder;  and  if  it  were 
without  such  intent,  it  is  manslaughter.  I  am  not  at  liberty  to 
depart  from  the  rule  as  thus  stated,  and  it  must  govern  me  in 
the  construction  of  our  statute,  until  the  court  shall  put  a 
different  interpretation  upon  it.  And  this  view  of  the  statute 
is  confirmed  by  the  fact,  that  the  revisors  recommended  a  pro- 
vision that  would  have  made  an  unlawful  killing  murder,  when 
perpetrated  from  a  premeditated  design  to  do  some  great  bodily 
injury,  although  without  a  premeditated  design  to  effect  death; 
but  the  legislature  refused  to  enact  it  —  thus  implying,  to  my 
view,  that  a  design  to  do  great  bodily  harm,  or  an  intention  to 
kill,  must  attend  an  act  imminently  dangerous,  &e.,  to  make 
the  crime  murder.  I  at  one  time  thought  that  there  could  be 
no  conviction  for  murder  under  this  clause  of  our  statute,  unless 
there  was  an  intention  to  take  the  life  of  some  one,  though  it 
was  not  necessary  to  prove  an  intent  to  take  the  life  of  any  par- 
ticular individual.  Therefore  it  was  that  in  the  case  of  Austin 
(7JV.  F.  Legal  Observer,  117),  I  remarked,  whether  the  act 
was  murder  or  manslaughter  under  our  statutes  depended 
entirely  upon  the  existence  of  an  intention  to  kill  either  some 


DECISIONS  IN  CRIMINAL  CASES. 


The  People  v.  The  Sheriff  of  Westchester  County. 

particular  person  or  generally  some  one  of  a  number  of  persons, 
against  whom,  in  a  mass,  the  fatal  act  is  perpetrated.  There 
is  only  one  homicide  known  to  our  law  which  becomes  mur- 
der in  the  absence  of  an  intention  to  effect  death,  and  that  is 
when  the  act  is  perpetrated  by  one  then  engaged  in  committing 
a  felony.  I  am  not  yet  satisfied  that  in  this  I  was  wrong, 
though  it  is  not  necessary  to  decide  that  point  here.  It  is 
enough  for  this  occasion  that  I  deem  there  should  be  evidence 
at  least  of  an  intention  to  do  some  bodily  harm;  and  that  must 
be  so  or  our  statute  must  be  held  to  punish  a  homicide  perpe- 
trated without  any  intention  to  do  wrong,  more  severely  than 
one  perpetrated  by  one  actually  engaged  in  the  commission  of 
a  crime  or  misdemeanor  not  amounting  to  a  felony.  Under 
our  statute  the  latter  is  manslaughter  only,  and  it  can  not  be 
that  it  means  to  treat  the  other  as  murder.  Now,  in  this  case 
there  is  no  allegation  of  an  intention  to  do  bodily  harm,  but, 
on  the  contrary,  the  facts  alleged  negative  that  idea;  and  thus, 
as  one  essential  element  to  constitute  the  crime  of  murder  is 
wanting,  the  prisoners  ought  not  to  be  held  on  that  charge. 
They  ought  not,  however,  to  be  fully  discharged,  but  may  pro- 
perly be  held  for  manslaughter,  and,  I  am  inclined  to  think,  in 
the  first  degree.  That  is  defined  in  our  statute  to  be  "  the 
killing  of  a  human  being,  without  a  design  to  effect  death,  by 
the  act,  procurement,  or  culpable  negligence  of  any  other, 
while  such  other  is  engaged  in  the  perpetration  of  any  crime 
or  misdemeanor  not  amounting  to  felony."  (2  R.  S.  661,  sec. 
6.)  And  it  is  also  enacted  that,  if  the  person  having  charge 
of  a  steam  boat  navigating  our  waters,  or  the  person  having 
charge  of  the  boiler,  for  the  purpose  of  excelling  any  other 
boat  in  speed,  or  for  the  purpose  of  increasing  the  speed  of 
such  boat,  create  or  allow  to  be  created  an  undue  or  unsafe 
quantity  of  steam,  they  shall  be  guilty  of  a  misdemeanor^ 
(Laws  of  1839,  ch.  175,  63.)  Here  it  is  alleged  in  the  war- 
rant, in  the  very  language  of  the  statute,  that  the  killing 
occurred  while  the  prisoners  were  engaged  in  performing  those 
very  acts.  So  that,  although  the  warrant  calls  the  offence 
murder,  that  which  it  details  is,  in  fact,  not  murder,  but  man- 


NEW  YORK,  SEPTEMBER,   1852.  ggg 

The  People  v   The  Sheriff  of  Westchester  County. 

slaughter.  Whether  it  is  manslaughter  in  the  first  or  some 
other  degree,  depends  upon  some  question  of  interpretation, 
which  I  do  not  feel  myself  now  called  upon  to  consider.  It  is 
enough  for  this  case,  that  I  am  satisfied  that  the  prisoners  are 
not,  under  the  statute,  properly  chargeable  with  the  crime  of 
murder,  which  is  not  bailable,  but  with  an  offence  for  which 
they  may  be  let  to  bail.  The  conclusion,  then,  at  which  I  have 
arrived  is,  that  the  absence  of  jurisdiction  in  the  state  courts 
is  not  so  clear  as  to  warrant  the  total  discharge  of  the  prison- 
ers j  that  they  can  not,  however,  be  held  on  the  charge  of 
murder,  but  may  be  held  on  the  charge  of  manslaughter;  and 
that,  as  that  offence  is  bailable,  they  may  be  admitted  to  bail 


INDEX. 


ACCESSORY. 

An  accessory  can  not  be  tried  before 
.he  trial  and  conviction  of  the  prin- 
cipal offender.  Baron  v.  The  Peo- 
ple, 246 

2.  An  accessory  may  be  indicted  and 
tried  in  the  county  where  the  of- 
fence of  the  accessory  was  committed 
notwithstanding  the  principal  offence 
was  committed  in  another  county, 
but  the  accessory  can  not  be  indicted 
and  tried  in  the  county  where  the 
principal  offence  was  committed, 
unless  his  offence  as  accessory  was 
committed  there.  ib 


ARSON. 

1.  It  is  sufficient,  in  an  indictment  for 
arson  in  the  1st  degree,   to  describe 
a  building,  which  has  been   usually 
occupied  by  persons  lodging  therein 
at  night,  as  a  "  dwelling  house,"  al- 
though  it   may   not   be  a  dwelling 
house  in  the  ordinary  and  popular 
acceptation  of  that  term.     (2  R.  S. 
657,  H-)      People  v.  Orcott.      ^fa 

2.  A  person  is  presumed  to  intend  the 
ordinary  consequences  of  his   acts; 
and  it  devolves  upon  a  person  charged 
with  crime  to  rebut  this  presinip- 
tion,  by  evidence  of  a  different  in- 
t?nt.  »* 


3.  A  design  to  produce  death  is  not  ne- 
cessary to  constitute  the  offence  of 
arson  in    the  first  degree,  either  at 
common  law  or   under  the   statute. 

•I 

4.  It  is  immaterial  whether  the  person 
charged  with  this  offence  has  know- 
ledge that  the  building  burned  has 
usually  or  at  any  time  been  occupied 
by  persons  lodging  therein.  ib 

5.  Any  building  is  a  "dwelling  house" 
within  the  act  defining  arson  in  the 
first  degree,  which  is  in  whole  or  in 
part    usually   occupied    by   persons 
lodging  therein  at    night,    although 
other  parts,  or  the  greater  part,  may 
be  occupied  for  an  entirely  different 
purpose.  ib 

6.  Arson  is  an  offence  against  the  pro- 
perty of  another;  and  a  person  can 
not  become   guilty  of  arson  in  the 
first  degree,  by  setting  fire  to  his  own 
house.     The   People   v.    Henderson, 

560 

7.  To  convict  a  person  of  arson  in  the 
third  degree,  under  §5,  2  R.  S.  667, 
it   is    necessary   to  allege   that  the 
house  was  insured   against   loss   or 
damage  by  fire  and  that  the  offence 
was   committed  with    intent  to  de- 
fraud the  insurance  company;  under 
that  section   a  person  may  be  con- 
victed of. burning  his  own  dwelling 
house,  but  it  is  still  an  offence  against 
the  property  of  another,  the  object 
of  the  crime  being  to  defraud  the  in- 
surer, who   has  an  interest   in  the 
preservation  of  the  property,         iA 


388 


INDEX. 


8.  Where  an  indictment  for  arso 
charged  that  the  prisoner,  in  th 
night  time,  feloniously  set  fire  to  hi 
own  dwelling  house,  in  which  ther 
were  at  the  time  divers  human  be 
ings,  with  intent  to  burn  the  sai 
dwelling  house  and  with  intent 
thereby,  to  defraud  the  Poughkeepsi 
Mutual  Insurance  Company,  on  de 
murrer,  it  was  held  that  the  indict 
ment  was  not  sufficient  to  bring  th 
offence  within  the  first  degree,  be 
cause  it  was  not  the  dwelling  hous 
of  another,  and  that  it  was  not  suffi 
cient  under  the  third  degree,  be 
cause  it  was  not  alleged  in  the  in 
dictment  that  the  property  was  in 
sured,  and  the  indictment  was  ad 
judged  to  be  bad. 


ATTEMPT  TO  COMMIT  CRIMES 


i.  The  power  to  punish  by  imprison- 
ment in  a  state  prison,  upon  a  convic- 
tionf  or  an  attempt  to  commit  a  crime, 
is  not  limited  to  those  cases  where 
the  imprisonment  in  state  prison,  il 
the  crime  attempted  had  been  con- 
summated, must  be  for  four  years  or 
more;  but  in  all  cases  where  the 
crime  attempted  may  be  punished 
four  years  or  more  in  a  state  prison, 
the  court  may  sentence  the  convict 
to  imprisonment  in  a  state  prison  for 
a  time  not  exceeding  one  half  of  the 
longest  time  of  imprisonment  pre- 
scribed for  a  conviction  of  the  offence 
attempted.  Mackay  v  The  People, 

459 

2.  Where,  by  the  statute,  the  impri- 
sonment  in   the    state  prison  for  a 
commission  of  the  crime  attempted 
must  be   for  a   term  less  than  four 
years,  the   person    convicted  of  the 
attempt  can   only  be   sentenced   to 
imprisonment  in  a  county  jail,  for  not 
more  than  one  year.  ib 

3.  Grand  larceny  being  punishable  for 
a  term  of  not  more  than  five  and  not 
less  than   two  years,  a  person   con- 
victed of  an  attempt  to  commit  grand 
larceny  may  be  sentenced  to  impri- 
sonment in  the  state  prison  for  two 
years  and  six  months.  ii 


B 


BIGAMY. 

On  the  trial  of  an  indictment  for  biga- 
my, the  confessions  of  the  defendant, 
though  supported  by  proof  of  co- 
habitation and  reputation,  are  not 
sufficient  to  establish  the  first  mar- 
riage- proof  of  actual  marriage, either 
by  the  record  or  by  the  evidence  of 
an  eye  witness,  is  requisite.  Gaha- 
gan  v.  The  People.  378 


BURGLARY. 

1.  Where  a  burglary  is  connected  with 
a  larceny    mere    possession   of  the 
stolen  goods,  without  any  other  evi- 
dence of  guilt,  is  not  to  be  regarded 
as  prima  facie  or  presumptive  evi- 
dence of   the    burglary.     Davis    v. 
The  People,  447 

2.  But  where  goods  have  been  felon- 
iously taken  by  means  of  a  burglary 
and  they  are  immediately  or  soon 
thereafter  found  in  the  actual  and 
exclusive   possession    of   a   person, 
who  gives  a  false  account,  or  refuses 
to  give  any  account  of  the  manner  in 
which  the  goods  came  into  his  pos- 
session, proof  of  such  possession  and 
guilty  conduct  is  presumptive  evi- 
dence  not   only   that   he   stole   the 
goods,  but  that  he  made  use  of  the 
means  by  which  access  to  them  was 
obtained.  ib 

.  There  should  be  some  evidence  of 
guilty  conduct,  besides  the  bare  pos- 
session of  the  stolen  property,  before 
the  presumption  of  burglary  is  su- 
peradded  to  that  of  the  larceny,  ib 

See  INDICTMENT,  4. 


CERTIORARI. 
Sec  HABEAS  CORPUS,  9. 


INDEX. 


699 


CHALLENGE  OF  JURORS. 

1.  A  juroi   may  be  challenged  to  the 
favor,  after  a  challenge  to  the  same 
juror,  for  principal  cause,  has  been 
tried  and  overruled.     Carnal  v.  The 
People,  27 

2.  Whe-e,  after  a  challenge  for  princi- 
pal cause  had  been  tried  and  over- 
ruled, a  challenge  to  the  same  juror 
was  interposed  "  to  the  favor."  it 
was  held  that  the  form  of  the  chal- 
lenge was  sufficient  without  stating 
specifically  the  grounds  of  challenge. 

ib 

3.  Where,  on  a  criminal  trial,  a  per- 
son  is  drawn    as  a  juror  and  chal- 
lenged to  the  favor  and  called  as  a 
witness  in   support  of  the  challenge 
to  prove  a  bias  growing  out  of  what 
he  had  heard  or  read  on  the  subject, 
it  is  proper  on  his  cross-examination, 
to  ask  him  his  opinion   as   to  the 
character  and  extent  of  the  supposed 
bias  and  whether  he  thinks  it  would 
influence  him  after  hearing  the  evi- 
dence.     The  People  v.  Knickerbocker, 

302 

4.  Where,  on  the  trial  of  a  challenge 
to  the  favor,   improper  evidence  is 
received  and  the  triors  find  the  juror 
indifferent,  and  he  is  then  challenged 
peremptorily,   and   it    appears    the 
prisoner  had  not  exhausted  all   his 
peremptory    challenges     when    the 
panel  was  completed,   the  prisoner 
can  not  afterwards  avail  himself  of 
exceptions  taken   to  the   admission 
of  such  improper  evidence  before  the 
triors.  ib 

5.  No  peremptory  challenges  are  al- 
lowable to   the  people   in  criminal 
cases.     The  statute  of  1847,  entitled 
"  an  act    to   provide    for  additional 
challenges     to   jurors,"     has     not 
changed  the  law  in  respect  to  chal- 
lenges  by   the   people   in    criminal 
cases.     The  People  v.  Henrits,     579 

6.  Where  two  or  more  persons,  jointly 
indicted   for  murder,    are   tried  to- 
gether,   only    twenty    peremptory 
challenges  can  be  allowed  to  all  the 
defendants.     The  People  v.  Thayers, 

595 


COMMITMENT. 
See  CONVICTION,  2. 


CONVICTION. 

1.  Upon  a  conviction  at  the  Oyer  and 
Terminer,  it  is  not  sufficient  to  state 
in  the  entry  of  judgment  in  the  min- 
utes, under  the  requirement  of  2  R. 
S.  738,  §  5,  that   the   defendant  was 
convicted    of  a  felony    or   a   misde- 
meanor,- but  the  particular   offence 
should   be   stated.       The   People   v. 
Cavanagh,  588 

2.  And  where  a  person  is  imprisoned 
under  such  conviction,  the  particular 
kind  of  offence  of  which  he  has  been 
convicted  should  appear  in  the  com- 
mitment, that  it  may  be  seen  whe- 
ther the  punishment  awarded    was 
warranted  by  the  offence.  ib 

3.  The  penitentiary  being  provided  by 
law  for  the  imprisonment  of  persons 
convicted  in   the  county  of  Kings, 
who  shall  be  sentenced  to  imprison- 
ment for  a  term  not  less  than  thirty 
days,  it  is  illegal,  in  that  county,  to 
sentence  a  person  so  committed  tn 
imprisonment  in  the  county  jail.    j,S 

See  EVIDENCE   34. 


COURTS  OF  SESSIONS. 

1.  Courts  of  Sessions  as  organized  un 
der  the  judiciary  act  of  1847,  hav« 
not  power  to  grant  new  trials.     The 
People  v.  Court  of  Sessiont,          369 

2.  Where,  in  a  court  of  sessions,  the 
defendant  had  been   four.d  guilty  of 
arson  in   the  third  degree,  and  the 
court  granted  a  new  trial  upon  the 
merits  and  refused  to  pass  sentence 
according  to  the  verdict,  it  was  held 
that  the  granting  of  a  new  trial  wai 
a   nullity    and    a    mandamus    was 
awarded  to  compel  the  court  to  pro- 
ceed and  pass  sentence.  ib 

1.  Since  the  act  of  1851,  entitled  '•  an 
act  in  relation  to  courts  of  Sessions," 


VOL.  I. 


87 


690 


IXDEX. 


(Sets.  Laws  of  185!,  825,)  a  cou-t  of 
Sessions  can  not  be  held,  except  in 
pursuance  of  a  previous  order  of  a 
county  judge;  made  under  the  author- 
ity of  that  act,  and  in  conformity 
therewith,  designating  the  times  for 
the  purpose,  and  published  as  there- 
in directed:  and  when  an  indictment 
was  found  at  a  term  not  legally  ap- 
pointed, and  a  plea  in  abatement 
setting  up  such  illegality  was  inter- 
posed and  overruled  by  the  Court  of 
Sessions  on  demurrer,  the  case  hav- 
ing been  removed  into  the  Supreme 
Court  by  certiorari  the  conviction 
was  reversed  and  the  proceedings  of 
the  Sessions,  were  quashed  .  The 
People  \  .  Montghan,  070 

4.  A  court  of  sessions  has  not  jurisdic- 
tion to  try  an  indictment  for  robbery 
in  the  first  degree,  that  offence  being 
punishable  in  the  state  prison  for 
life;  a  trial  and  conviction  in  such 
case  are  utterly  void.  The  People  v. 
Henries,  579 


E. 

ENTRY  OF  JUDGMENT. 

Upon  a  conviction  at  the  Oyer  and 
Terminer,  it  is  not  sufficient  to  stale 
in  the  entry  of  judgment  in  the  mi- 
nutes, under  the  requirement  of  2  R. 
R.  S.  738,  $  5,  that  the  defendant  was 
convicted  of  a  felony  or  a  misde- 
meanor,- but  the  particular  offence 
should  be  stated.  The  People  v. 
Cavanagh,  388 


EVIDENCE. 

1.  On  trial  for   murder,  the  dying  de- 
clarations of  the  deceased,  that  is, 
declarations  made  under  the  appre- 
hension of  death,  are  competent  evi- 
dence against  the  prisoner;  but  be- 
fore such  declarations  are  received, 
it  must  be  satisfactorily  proved  that 
the  deceased,  at  the  time  of  making 
them,  was  conscious  of  the  danger 
and  had  given   up  all  hopes  of  re- 
covery.    The  People  v.  Green.       11 

2.  When,  by  the  direction  of  the  at- 
tending physician,  and  in   his  pres- 
ence,  W.   informed  the   deceased,  on 


the  day  before  her  death,  that  she 
could  not  live,  whereupon  the  de- 
ceased requested  the  physician  Jo 
hear  a  communication  that  she  de- 
sired to  make,  and  with  his  consent 
she  proceeded  to  give  a  history  of 
the  conduct  of  the  prisoner  during 
her  illness,  tending  to  show  that  he 
had  several  times,  during  such  ill- 
ness, administered  arsenic  to  her, 
held,  that  such  communication  was 
admissible,  as  her  dying  declaration. 

ib 

3.  Where,  on  the  trial   of  a  capital 
case,  several  witnesses  are  to  be  ex- 
amined tc  the  same  point,  the  court 
may,   in  its  discretion,  require  all 
such  witnesses,  except  the  one  un- 
der examination,  to  leave  the  room, 
during  such  examination  ib 

4.  The  possession,  by  a  prisoner,  of  an 
unanswered    letter,    found    in     his 
pocket,  at  the  time  of  his  arrest,  is 
not,  of  itself,  evidence  of  the   con- 
tents and  it  can  not  be  read  in  evi- 
dence against  him  on  the  trial.       ib 

5.  The    maxim,   qui  facet,  consentire 
videtur,  is  not  applicable  to  such  a 
case;  nor  is  it  generally  applicable, 
except  to  verbal  conversations,  and 
to  certain  communications  in  writing 
in  mercantile   transactions.     It  can 
not  be  applied  to  facts  stated  in  a 
letter  which  a  party  is  not  bound  or 
interested  to  answer.  ib 

6.  Where  a  party  has  called  a  witness, 
and  proved   by  him  a  conversation 
had   with   the   opposite   party,    the 
party  whose   conversation  has  been 
proved  can  not,  on  cross-examina- 
tion,   prove   by  the  witness  a  subse- 
quent conversation  between  the  party 
cross-examining    and    the   witness, 
which  took  place  two  or  three  hours 
after  the   first  conversation,  though 
such    subsequent   conversation    was 
upon  the  same   subject   as  the  first 
conversation   and   in  explanation  of 
it  '* 

7.  And  though  the  party  calling  the 
witness  proves  the  fact   that  there 
was  a  subsequent  conversation,  that 
does  not  entitle  the  party  cross-ex 
amining  the  witness  to  prove  what 
was  said  at  such  subsequent  conver- 
sation. *• 


INDEX. 


8  As  a  general  rule,  it  is  not  rompe 
tent,  in  support  of  the  testimony  of 
a  witness,  for  the  party  calling  him 
to  prove  that  he  has  made  declara 
tions  out  of  court  corresponding  with 
his  testimony  in  court.  The  excep- 
tions to  this  rule  stated.  The  People 
v.  Finnegan,  14 

^.  And  this  rule  is  applicable  to  cases 
where  an  attempt  is  made,  on  a 
cross. examination,  to  throw  doubts 
on  the  testimony  of  a  witness,  as 
well  as  to  cases  where  other  witness- 
es have  been  called  and  examined  to 
contradict  the  statement  of  the  wit- 
ness, ib 

JO  It  is  not  collateral  but  relevant  to 
the  m;tin  issue  to  inquire  into  the 
motives  which  influence  a  witness 
in  giving  his  testimony,  and  a  party 
examining  a  witness  in  regard  to 
them,  is  not  bound  by  his  answers 
but  may  contradict  him.  The  People 
v.  dustin,  104 

11.  A  sufficient  foundation  is  laid  for 
such  contradiction  if  the  attention 
of  the  witness  has   been  directed  to 
the  time,   place   and  circumstances 
attending  an  alleged  statement  made 
by  him,  and  the  name  of  the  person 
to  whom  he  may  have  made  it  need 
not    be    mentioned,    if   it.    was    not 
necessary  to  enable  him  to  know  to 
what  remark  his  attention  was  di- 
rected. t'6 

12.  The  statute  allowing  the  relative 
of  a  person  killed,  to  recover  dama- 
ges therefor  it  will  be   no  impeach- 
ment of  a   witness,  that  he  as    fa- 
ther of  the  deceased,  had  attempted 
by   negotiation  to   recover  compen- 
sation from  the  author  of  the  death. 

ib 

13.  A   person  convicted  of  perjury  is 
an  incompetent  witness,  though  he 
has  been  pardoned  by  the  governor, 
and   the  pardon  purports  to  restore 
him  to  all  his  civil  rights,  the  legis- 
lature  having    provided   that   such 
convict    shall    not  be  received  as  a 
witness  till  such   judgment  be   re- 
versed; such  is  the  law,  though  the 
exclusive  power  of  pardon  be  vested 
in    the   governor.     Houghtaling  v. 
Kdder  house,  241 


691 

14.  Such  incapacity  to  tektify  is  the 
result  of  a  rule  of  evidence  and  not 
a  punishment  of  the  offence.  t'6 

15  Where  a  defendant  proves  the 
making  of  an  admission  by  the 
plaintiff,  the  latter  has  a  right  to 
give  evidence  in  explanation  of  the 
admission  and  to  have  the  witness 
state  all  that  was  said  upon  the  sub- 
ject at  the  time.  fj 


16.  A  person  is  presumed  to  intend 
the  ordinary  consequences  of  his 
acts:  and  it  devolves  upon  a  person 
charged  with  crime  to  rebut  this 
presumption  by  evidence  of  a  differ- 
ent intent.  The  People  v.  Orctttt, 


17.  Where,  on  trial  for  murder  by 
poisoning,  the  deceased,  on  the  thira 
day  of  her  illness,  said  to  her  female 
attendant,  that  she  expected  to  die 
because  she  was  poisoned,  and  also 
expressed  a  similar  opinion  at  a  sub- 
sequent time,  and  at  no  time  ex- 
pressed an  opinion  that  she  should 
recover,  her  declarations  made  after 
the  third  day  of  her  illness,  down  to 
the  time  of  her  death,  on  the  twelfth 
day  of  her  illness,  were  received  as 
evidence,  although  it  did  not  appear 
that  either  of  her  attending  physi- 
cians had  told  her  she  was  going  to 
die.  and  although  it  appeared  that 
one  of  the  physicians,  notw  ithstand- 
ing  the  cause  of  her  illness,  had  spo- 
ken to  her  encouragingly  of  her 
prospect  of  recovery.  The  People  v. 
Grunzig.  299 

18.  To  entitle  the  prosecution,  on  a 
trial  for  murder,  to  introduce  evi- 
dence of  the  dying  declarations  of 
the  deceased,  it  must  appear  by  the 
preliminary  evidence,  that  the  de- 
clarant knew,  or  believed,  his  injury 
was  mortal,  and  that  death  was  ra- 
pidly approaching.  This  may  be 
shown  by  the  expressions  and  con- 
duct of  the  deceased,  or  by  other 
satisfactory  evidence.  The  People  v. 
Knickerbocker,  302 

9.  After  the  introduction  of  the  pro- 
per preliminary  evidence,  the  prose- 
cution is  entitled  to  show  such  dying 
declarations,  notwithstanding  there 
may  be  other  witnesses  bv  who*« 


69:2 


INDEX. 


testimony  the  same  facts  might  be 
proved,  which  are  sought  to  be  es- 
tablished by  such  dying  declarations. 

ib 

20.  The  fact  that  a  witness  admits,  on 
his  cross-examination,  that  he  has 
been  prosecuted  and  bound  over,  on 
a  charge  of  perjury,  will  not  author- 
ize the  party  calling  the  witness  to 
give  evidence  of  the  general  good 
character  of  the  witness.  The  Peo- 
ple v.  Gay,  308 

•21.  A  party  can  only  give  evidence  of 
the  good  character  of  his  witness, 
when  impeaching  witnesses  have 
been  first  called  on  the  other  side. 

ib 

22.  By  impeaching  witnesses,  in  such 
case,  is    meant    only  such   as   have 
spoken  to  general   character,  or   to 
character  for  truth.  ib 

23.  On  the  trial  of  an  indictment  for 
incest,  charged  to  have   been   com- 
mitted by  a  father  with  his  daughter, 
the  declarations  of  the  defendant  are 
competent  evidence  upon  the  ques- 
tion of  consanguinity.     The  People 
v.  Hariden,  344 

24.  On  the  trial  of  an  indictment  for 
bigamy,  the  confessions  of  the  de- 
fendant, though  supported  by  proof 
of  cohabitation  and   reputation,  are 
not  -sufficient   to   establish  the  first 
marriage;  proof  of  actual  marriage, 
either  by  the  record  or  by  the  evi- 
dence of  an  eyewitness,  is  requisite. 
Gahagan  v.  The  People.  378 

25.  The  answer  of  a  witness  on  cross- 
examination,  to  an  inquiry,  the  sub- 
ject of  which  is  purely  collateral  to 
the  issue,  is  conclusive.     The  People 
v.  McGinnit,  387 

28.  On  a  criminal  trial,  it  is  no  objec- 
tion to  proving  a  confession  of  the 
defendant,  that  it  was  made  when  he 
was  under  oath,  if  it  appear  that  it 
was  free  and  voluntary  and  not  made 
under  the  influence  of  fear  or  hope. 
The  People  v.  Hendrickson,  406 

27.  What  a  person  says,  when  exam- 
ined as  a  witness  in  a  legal  proceed- 
ing, may  be  used  in  evidence  against 


him ;  out  the  statements  or  oath  of  a 
party  accused  can  not  be  given  in 
evidence.  Lewis's  Cases.  6  Car.  $  P. 
161;  David's  Case,  id.  177;  and 
Owen's  Case,  9  Car.  $P  238;  re- 
viewed and  overruled.  ib 

28.  Where  on  the  trial  of  a  party  for 
the  murder  of  his  wife,  it  appeared 
that  the  prisoner  had  been  examined 
as  a  witness  before  the  coroner's  in- 
quest, on  the  evening  subsequent  tc 
the  death,  and  that  he  had  not  then 
been  charged  or  accused  of  the  crime, 
and  that  his  statements,  then  made 
under  oath,  were  free  and  voluntary, 
such  statements  were  held  to  be  pro- 
perly receivable  in  evidence  against 
him.  ib 

29.  Held  also,  that  evidence  of  conver- 
sations between  the  prisoner  and  his 
wife,  and  between  the  prisoner  and 
his  brother-in-law,  tending  to  show 
an    alienation    of    affection   on   his 
part  in   regard  to  his  wife,  was  ad- 
missible on  the  question  of  motive. 

ib 

30.  Held  al  so.  that  the  will  of  the  pri- 
soner's father-  in-law  was  properly 
received  in  evidence,  for  the  purpose 
of  showing  that    the  pecuniary  ex- 
pectations, which  the  prisoner  might 
have     entertained    by   reason  of  his 
alliance  with  the  family,  had   been 
disappointed.  ib 


31.  The  opinion  of  a  physician  upon 
a   question    not   involving   medical 
skill  or  science  is  not  admissible  evi- 
dence.     Woodin  v.  The  People,    404 

32.  Medical  men  are  allowed  to  give 
their  opinions  in  cases  of  alleged  in- 
sanity, because  they  are  supposed  by 
their  study  and  practice  to  under- 
stand the  symptoms  of  insanity  and 
to  possess  peculiar  knowledge  on  that 
subject,  without  which  the  jury  could 
not  be    able  to   decide  the  question 
correctly ;  but  they  should  not  be  per- 
mitted to  express  such  opinion,  ex- 
cept on  all  the  testimony  which   is 
felied  on  to  establish  insanity.  Lake 
v.  The  People,  49i> 

33.  A  medical  witness,  examined  as  an 
expert  on  a  question  of  insanity  may 
be  asked  his  opinion  as  to  a  hypo- 


INDEX. 


69S 


thetical  statement  of  facts:  he  may 
also  be  asked  what  are  the  symptoms 
of  insanity.  Whether  such  facts 
exist  or  such  symptoms  are  proved 
it  belongs  exclusively  to  the  jury  to 
decide,  ib 

34.  Where  a  record  of  conviction  of  a 
witness   for  petit  larceny,  is  offered 
in  evidence   for   the   purpose  of  dis- 
crediting such  witness,  it    is  not  a 
good   ground  for  rejecting  such  evi- 
dence, that  it  related  to  a  transaction 
which  occurred   more  than  twenty- 
five  years  before,  though  such  evi- 
dence   unaccompanied    by  proof  of 
subsequent  bad  character,  is  entitled 
to  but  little  weight,  ib 

35.  The  mode  of  reasoning  and  draw- 
ing conclusions  from  facts  and  cir- 
cumstances is  the  same,  whether  the 
case  under  consideration  is  a  mere 
contest  respecting  the  rights  of  pro- 
perty,  or  one  involving  the  life  of 
an  individual-,  except  that,  in  crim- 
inal cases,  the  accused  must  be  pre- 
sumed to  be  innocent,  until  the  con- 
trary is  clearly  established  by  proof 
which   leaves   no  reasonable    doubt 
on  the  mind.    The  Pcoplo  v .  Thayers, 

596 

36.  Presumptive  or  circumstantial  eVi- 
dence  is  admissible  both  in  civil  and 
criminal  cases,  and  in  prosecutions 
for  some  of  the   worst    species   of 
crimes,  is  often  the  most  satisfactory 
and  convincing  that  can  be  produced. 
The   reasons  for  this  opinion  in  a 
comparison    between    positive   and 
circumstantial  evidence.     The  People 
v.  Videto,  603 

37.  The  treatise  entitled/'  The  theory 
of  presumptive  proof,  or  an  inquiry 
into  the  nature  of  circumstantial  evi- 
dence," which   is   found  bound    up 
with  the  first  American  edition  of 
Philips's  Evidence,  disapproved  and 
declared  to  be  in  opposition  to  the 
judicial  decisions  upon  that  subject; 
and  the  eleven  cases  published  in  the 
appendix  of  that  work  for  the  pur- 
pose of  supporting  that  theory  by 
illustration,   held  to  be  unauthenti- 
cated  and  unreliable.  ib 

38.  The   nature   of  presumptions  dis- 
cussed;   and   violent  presumptions, 


probable  presumptions,  and  light  01 
rash  presumptions  described  and  il- 
lustrated by  examples,  and  directions 
give"n  as  to  their  application,  and  as 
to  the  weight  that  should  be  seve- 
rally given  to  them.  .16 

39.  Where  on  a  trial  at  the  Oyer  and 
Terminer,  the  prisoner   called  as  a 
witness  a  woman,  by  whom  he  pro- 
ved  that    she  was    living  with  the 
prisoner  as  his  mistress  and  not  as 
his  wife,   so  as  to  make  her  a  com- 
petent witness  in  his  behalf,  and  then 
proved,  by  her,  facts  deemed  material 
in  the  case,  and  no  attempt  was  made 
on  the  part  of  the  public  prosecutor 
to  impeach  her  testimony,   it    was 
held  that  the  prisoner   was  not  at 
liberty  to  introduce  testimony  to  sus- 
tain her  character  for  truth  and  ve- 
racity.    Colt  v .  The  People,         611 

40.  Where  there  is  no  evidence  before 
the  grand  jury,  or  known  to  the  pro- 
secutor, at  the  time  of  finding  the 
indictment  for  murder,  to  show  what 
instrument  was  used  to  produce  the 
mortal  wound,  it  is  proper  to  charge 
in  the  indictment,  that  such  wound 
was  inflicted  by  some  instrument  to 
the  jurors  unknown;  and  under  such 
an  allegation,  it  is  competent  for  the 
public  prosecutor  to  introduce  evi- 
dence to  raise  a  presumption  that  the 
wound  was  caused  by  a  pistol  ball ; 
and  to  prove,  for  that  purpose,  that 
the  prisoner  had  pistols'  in  his  posses- 
sion apd  that  a  ball,  propelled  by  the 
explosion  of  a  percussion  cap,  would 
be  likely  to  produce  such  a  wound; 
or  to  prove  that  the  prisoner  had  such 
pistols,  for  the  purpose  of  satisfying 
the  jury  if  possible,    in  connection 
with  other  evidence  in  the  case,  that 
the  prisoner  had   taken  the  ramrod 
from  the  pistol  and  driven  it  into  the 
head  of  the  deceased.  t'A 

See  BURGLARY. 

CHALLENGE  TO  JURORS,  3. 
RAPE. 

RECOGNIZANCE,  8. 
SUMMARY  CONVICTION,  7,  9. 


EXCEPTION. 

.  An   exception  is  available  for  tb* 


694 


INDEX. 


purpose  of  correcting  an  error  in  the 
admission  or  rejection  of  evidence, 
in  granting  or  refusing  a  nonsuit,  in 
charging  or  refusing  to  charge  the 
jury  on  a  specific  proposition,  or  in 
deciding  any  question  on  the  trial 
affecting  the  merits;  but  all  that  re- 
lates to  the  manner  of  conducting 
the  trial,  to  the  forms  of  the  quest- 
ions asked,  if  not  objectionable  in 
substance,  and  to  the  range  allowed 
to  counsel  in  their  arguments,  are 
matters  of  discretion,  as  to  which  a 
remedy  for  a  supposed  error  can  not 
be  had  by  an  exception.  The  People 
v.  Finnegan,  147 

2.  Where  the  court  permitted  the 
counsel  far  the  people  to  urge  to  the 
jury  that  they  might  infer  from  the 
prisoner's  omission  to  prove  a  good 
character,  that  his  character  was 
bad.  because  the  counsel  for  the  pri- 
soner had  stated  to  the  jury  in  open- 
ing the  defence  that  he  had  known 
the  prisoner  from  his  youth  and 
knew  him  to  be  a  man  of  fair  char- 
acter, held,  that  such  decision  could 
not  be  reviewed  on  exception,  the 
latitude  to  be  allowed  counsel  in  ad- 
dressing the  jury  being  a  matter  of 
discretion;  but  that  the  proper  way 
to  have  raised  the  question  was  by 
asking  the  court  to  charge,  after  the 
counsel  had  addressed  the  jury  on  a 
specific  proposition  as  to  the  legal 
presumption,  and  if  the  court  re- 
fused so  to  charge  then  to  except  to 
such  refusal.  ib 

3.  Where  an  exception  is  taken  so  in- 
distinctly that  the  court  can  not 
readily  perceive  the  exact  point  of 
the  objection,  the  appellate  court 
will  disregard  it.  Per  Mitchell,  J. 
Carnal  v.  The  People,  272 

4.  In  charging  a  jury,  an  expression 
of  opinion  by  the  judge  as  to  the  ef- 
fect of  the  evidence,  leaving  the  jury 
to  decide  the  question  notwithstand- 
ing such  expression  does  not  furnish 
a  valid  ground  of  exception-  aliter, 
if  the  language,  which  is  the  subject 
of  exception,  amounts  to  an  instruc- 
tion as  to  the  law  applicable  to  the 
evidence  in  the  case.     The  People  v. 
Qutn,  340 

5.  Where  the  question,  on  the  trial. 


I  was  whether  the  prisoner  was  guilty 
{  of  murder  or  manslaughter,  and  the 
presiding  judge,  in  his  charge  to 
the  jury,  after  commenting  on  the 
evidencf  for  the  prosecution,  said 
"  Now,  gentlemen,  if  you  believe 
this  evidence,  and  believe  tnat  the 
crime  was  committed  by  the  defend- 
ant, under  the  circumstances  as 
given  to  you  by  these  witnesses,  I 
see  no  ground  to  warrant  you  in  not 
finding  the  defendant  guilty  of  man- 
slaughter, but  in  my  judgment  he  is 
then  guilty  of  murder,"  it  was  held 
to  amount  to  an  instruction  upon  a 
conclusion  of  law:  and  the  case 
properly  presenting  questions  of  fact 
to  be  passed  upon  by  the  jury,  viz: 
whether  the  killing  was  by  "  pre- 
meditated design  to  effect  death."  or 
in  the  "  heat  of  passion,"  &c.,  the 
charge  was  held  to  be  erroneous  and 
a  new  trial  was  awarded.  ib 

6.  A  bill  of  exceptions  lies  only  to 
correct   an  erroneous  decision  upon 
some  point  of  law  made  on  the  trial, 
or  some  erroneous  opinion  delivered 
to  the  jury  in  the  charge  of  the  court. 
to  which  an  exception  was  taken  at 
the  time.     The  People  v.  Slockham, 

424 

7.  Exceptions  may  now  be  taken  on 
the  trial  of  a  criminal  cause,  in  the 
same  cases  and  manner  provided  by 
law  in   civil  cases.     Safford  v.  The 
People,  474 

See  TRIAL,  4,  6. 

SEDUCTION,  3,  4,  5,  6. 
TRIAL,  4. 


FALSE   PRETENCES 

1.  To  constitute  the  crime  of  obtain- 
ing property  by  false  pretences  un- 
der the  statute,  two  things  are  essen- 
tial, viz:  a  false  representation  as  to 
an  existing  fact  and  a  reliance  upon 
that    representation    as  true.      Tht 
People  v.  Tompkins,  224 

2.  Where,  from  the  depositions  taken 
before  the  police  justice,  it  appeared 
that  N  agreed  to  sell  to  T  one  hund- 


INDEX. 


695 


red  shares  of  stock,  deliverable  and 
payable  the  next  (lay,  and  on  the 
next  day,  before  transferring  the 
stock,  N  sent  for  T's  check  and  re- 
ceived for  answer  that  T  had  sent 
his  check  to  be  certified  and  would 
send  it  to  N  in  ten  or  fifteen  min- 
utes, and  relying  upon  this  statement 
A"  thereupon  transferred  the  stock  to 
T.  held,  that  it  was  apparent  that 
N's  reliance  was  on  the  promise  and 
not  on  the  representation  that  the 
check  had  been  sent  to  be  certified, 
and  that  a  case  was  not  shown  with- 
in the  statute,  especially  as  there 
was  no  proof  showing  that  the  check 
had  not  been  sent  to  be  certified,  and 
the  prisoner  was  discharged.  ib 


FELONY. 

1.  An  offence,  in  regard  to  which  there 
is  a  discretion  vested  in  the  court, 
to  punish  it,  either  by  imprisonment 
in  the  state  prison  or  by  fine,  or  by 
imprisonment  in  the  county  jail,  is 
within   the   statutory  definition  of 
felony      If  the  offender,  on  convic- 
tion, be  liable  to   imprisonment  in 
the  state  prison,  he  is  guilty  of  fel- 
ony, though  he  be  also  liable  to  the 
infiiction'of  a  less  severe  punishment. 
The  People  v.  Vansteenburgh,         39 

2.  A  violation  of  the  seventh  section 
of  the  act,  entitled  "an  act  to  pre- 
vent persons  appearing  disguised  and 
armed,"  passed  January  28,  1845,  is 
a  felony;  and  the  killing  of  a  human 
being  by  persons  engaged  in  the  vio- 
lation of  that  section,  though  the  act 
be  perpetrated  without  any  design  to 
effect  death,  is  murder.  ib 

o.  iu  all  cases  of  felony,  before  the 
passing  of  sentence,  the  court  should 
demand  from  the  defendant  what  he 
has  to  say  why  judgment  should  not 
be  pronounced  against  him;  and  the 
fact  that  the  defendant  was  present 
and  that  such  demand  was  made, 
ought  to  appear  upon  the  record. 
Saffbrd  v.  The  People.  474 


FELONIOUS  ASSAULT. 


indictment  under  the  Revised  Sta- 


tutes, charging  the  comniitt.ngof  an 
assault  and  baitery  with  a  deadly 
weapon,  with  the  intent  to  kill,  is 
sustained  by  proof  of  having  done  the 
act  with  intent  to  commit  a  felonious 
homicide;  it  is  not  necessary  to  prove 
an  intent  to  murder.  The  People  v. 
Shaw,  327 


FOREIGN  STATE. 

1.  The  statute  declaring  a  second  of- 
fence of  petit  larceny  to  be  punisha- 
ble in  the  state  prison,  is  not  appli- 
cable to  a  case    in  which  the  first 
conviction  took     place     in   another 
state.     The  People  v.  Caesar,       643 

2.  And  where    a    defendant    pleaded 
guilty  to  an  indictment  charging  pe- 
tit larceny  as  a  second  offence,  and  it 
appeared  by  the  indictment  that  the 
first  offence  was  committed  and  the 
first  conviction  had  in  the  state  of 
Massachusetts,  it  was  held  that  the 
defendant  could  only  be  punished  foi 
simple  larceny.  16 


FORGERY. 

On  the  trial  of  an  indictment  for  for- 
gery, alleged  in  the  first  count  to 
have  been  committed  by  the  defend- 
ant, by  having  in  his  possession  a 
forged  bank  note,  purporting  to  have 
bepn  issued  by  a  certain  banking  as- 
sociation, with  intent  to  utter  the 
same,  and  in  the  second  count,  with 
uttering  and  publishing  such  note,  it 
is  competent  to  prove  by  parol  that 
there  is  such  an  institution  in  exist- 
ence doing  business  in  this  state, 
without  introducing  in  evidence  the 
articles  of  association  under  which 
such  bank  was  organized.  Dennit 
v.  The  People,  469 

See  FORMER  TRIAL,  4. 


FORMER  TRIAL. 

I.  A  trial  and  conviction,  before  a 
court  of  Special  Sessions,  for  an  as- 
sault and  battery,  are  no  bar  to 
a  subsequent  indictment  for  man- 


696 


INDEX. 


slaughter, where  the  person  assaulted 
dies  subsequently,  of  the  wounds 
caused  by  the  blows,  for  inflicting 
which  the  complaint  for  assault  and 
battery  was  made.  Burnes  v.  The 
People,  162 

2.  A  former  trial  is  no  bar,  unless  the 
first  indictment  was  such  as  the  ac- 
cused  might     have    been   convicted 
upon,  by  proof  of  the  facts  set  forth 
in  the  second  indictment.     To  con- 
stitute a  bar  the  offence  charged  in 
both  indictments  must  be  identically 
the  same  in  law  as  well   as  in  fact. 

16 

3.  A  trial  and  acquittal,  on  an  indict- 
ment, charging  the  defendant  with 
having  mixed  arsenic  with  flour,  and 
with  having  caused  it  to  be  adminis- 
tered to  one  Louisa  Loveland,  with 
intent  to  kill  and  slay  her,  are  no  bar 
to  a  subsequent  indictment,  charging 
the  same  defendant  with  the   same 
act  in  mixing  the  arsenic,  and  caus- 
ing it   to    be    administered  to  one 
William  P.  Loveland.  with  intent  to 
kill  anu  slay   him.      The   People   v. 
Warren,  338 

I.  On  the  trial  of  an  indictment  charg- 
ing the  defendant  with  having  ut- 
tered and  published  as  true,  a  pro- 
missory note  made  by  the  defendant, 
on  which  the  names  of  certain  indi- 
viduals appearing  as  endorsers  were 
alleged  to  have  been  forged,  it  is  a 
^ood  defence,  under  the  plea  of  anter- 
jois  acquit,  that  the  defendant  had 
before  been  indicted  and  tried  for  the 
offence  of  forging  and  counlerteiting 
the  same  endorse  nents  and  on  such 
previous  trial  had  been  acquitted  by 
the  verdict  of  a  jury  upon  the  merits, 
the  only  controverted  question  on 
both  trials  being  whether  such  en- 
dorsements were  genuine.  The  Peo- 
ple v.  jlllm,  445 


FUGITIVES  FROM  JUSTICE. 

.  A  treaty  containing  provisions  to  be 
executed  in  futuro,  is  in  the  nature 
of  a  contract,  and  does  not  become  a 
rule  for  the  courts  until  legislative 
action  shall  be  had  on  the  subject. 
Inrt  Metzger,  108 


3.  The  treaty  with  France  of  1843., 
providing  for  the  surrender  of  fugi- 
tives from  justice,  can  not  be  exe- 
cuted by  the  president  of  the  United 
States  without  an  act  of  Congress.  t£ 

3.  No  person  can  be  surrendered  under 
that  treaty,  who  is  merely  charged 
with  crime  before  a  committing  ma- 
gistrate.    He  must  under  our  law  be 
indicted,  or  under  the  French  law  be 
mis  en  accusation  by  the  chambre  de» 
mises  en  accusation.  ib 

4.  The    power  to  issue  warrants   for 
the  purpose   of  apprehending  fugi- 
tives from  justice,  under  the  tenth 
article   of  the   treaty  between    the 
United  States  and  Great  Britain,  con- 
cluded on  the  ninth  day  of  August, 
1842,  and  under  other  treaties  be- 
tween this  government  and  foreign 
governments  is  conferred  by  the  act 
of  congress  of  August  12,  1848.  ch. 
167,  as  well  upon  the  judges  of  the 
several  state  courts,  as  upon  the  jus- 
tices of  the  supreme  court  and  the 
several  district  courts  of  the  United 
States   and   the   commissioners   ap- 
pointed  by  the  courts  of  the  United 
States.      In  re   Heilbonn,  429 

.  Such  warrant  can  only,  be  issued 
upon  complaint  made  under  oath  or 
affirmation,  charging  some  person 
with  having  committed  one  of  the 
crimes  enumerated  and  provided  for 
in  the  treaty,  and  if  the  complaint 
be  insufficient  there  is  no  jurisdic- 
tion to  issue  the  warrant.  ib 

i.  Where  the  charge  of  the  crime  is 
made  in  the  complaint  in  general 
terms,  and  the  complaint  also  con- 
tains all  the  facts  on  which  the 
charge  is  made;  and  from  such  facts 
it  clearly  appears  that  no  such  crime 
has  been  committed,  but  some  other 
offence  not  provided  for  in  the  treaty, 
the  complaint  itself  disproves  the 
general  charge  and  takes  away  the 
foundation  for  the  warrant.  ib 

7.  Where  a  person  had  been  arrested 
as  a  fugitive  from  justice  under  a 
warrant  issued  by  a  commissioner 
appointed  by  a  court  of  the  United 
States  and  was  afterwards  brought 
before  a  justice  of  the  supreme  court 
of  this  state  on  habeas  corpus  for  the 


INDEX. 


697 


purpose  of  inquiring  into  the  cause 
of  bis  detention  with  a  view  to  ob- 
taining his  discharge,  held  that  it 
was  proper  for  the  justice  to  Jook 
behind  the  warrant  for  the  purpose 
of  ascertaining  whether  the  complaint 
made  was  sufficient  to  give  the  com- 
missioner jurisdiction.  \l> 

8.  The  proper  mode  of  reviewing  a 
decision  of  a  slatejudge,  made  in  such 
case,  is  by  carrying  it  to  the  Supreme 
Court  of  the  state,  and  from  thence 
to  the  Court  of  Appeals,  and  from 
thence  to  the  Supreme  Court  of  the 
United  States,  if  the  decision  of  the 
court  of  appeals  be  against  the  power 
claimed  under  the  United  States  law. 

ib 

Where  a  bill  was  drawn  by  the 
Bank  of  Ireland  on  the  Bank  of 
England,  on  the  2d  July,  1854, 
to  the  order  of  Mrs.  A.  Hali- 
day,  for  £13,  7s.  6d.  sterling;  and 
•fter  several  intermediate  endorse- 
ments, was  endorsed  to  Chas.  Mc- 
Intosh  &  Co  ,  to  order,  and  the  bill 
came  to  Mclntosh  &  Co.  by  letter, 
which  was  surreptitiously  taken 
possession  of  by  Alex.  Heilbonn,  the 
prisoner,  a  clerk  for  Mclntosh  &  Co., 
who  wrote  the  following  endorse- 
ment on  the  bill:  "Received  for 
Chas.  Mclntosh  &  Co.,  Alex.  Heil- 
bonn, No.  9  Vine  street,  Regent 
street  No.  73  Aldermanbury,"  on 
which  the  bill  was  paid  to  the  pri- 
soner, /icW,  that  such  endorse- 
ment did  not  amount  to  the  crime  of 
forgery,  though  it  appeared  that 
Heilbonn  had  no  authority  to  en- 
dorse bills  of  exchange  or  to  receive 
the  amount  thereof,  and  that  the 
words,  t%  Chas.  Mclntosh  &  Co." 
were  an  imitation  of  the  hand  writing 
of  a  member  of  ihe  firm,  the  rest  of 
the  endorsement  being  in  the  un. 
disguised  hand  writing  of  said  Heil- 
bonn. And  held  that  the  olfence  of 
the  prisoner  belonged  to  a  different 
class  of  crimes  and  was  not  one  of 
those  provided  for  in  the  treaty  be- 
tween this  country  and  Great  Bri- 
tain. t6 


FUGITIVE  FROM  SERVICE. 

..  A  fugitive   slave  can   be   retaken 
and  returned  to  service,  only  on  the 

Vo^.  I.  88 


demand  of  his  owner,  or  his  agent 
or  attorney.     In  re  Kirk,  67 

2.  The  power  of  legislating   on  the 
subject  of  fugitives  from  service  is 
exclusive  in   the  government  of  the 
United  States,  and  it  is   not  compe- 
tent for  state  authorities  to  add  to, 
or  interfere  with  the  subject.          ib 

3.  The  statute  of  the  state  of  New 
York  (1  Rev.  Stat.  6,59,  $  15),  which 
allows  the  master  or  commandant  of 
a  vessel,  in  case  a  slave  shall  have 
concealed  himself  on  board  his  ves- 
sel and  thus  escaped  to  this  state,  to 
recapture   such    fugitive,    and   take 
him  before  the  mayor  or  recorder, 
for  the  purpose  of  obtaining  a  war- 
rant for  his  removal  from  the  state, 
is  repugnant  to  the  constitution  of 
the  United  States,  and  therefore  void. 

A 

4.  In  a  proceeding  on  habeas  corpus 
under  the  Revised  Statutes,  the  aver- 
ment of  a  person  claimed  as  a  fugi- 
tive from  service  that  he  is  a  free- 
man, is  a  sufficient  answer  to  the 
allegation  by  the  claimant  that  such 
person  is  his  slave  and  a  demurrer 
to  such  answer  on  the  ground  that  it 
is  argumentative  and  evasive   will 
be  overruled.     In  re  Belt,  169 

5.  In  submitting  proof  of  the  claim 
to  the  alleged  fugitive,  the  contem- 
poraneous acts  of  the  fugitive  and 
the  claimant  during  »he  period  when 
the  relation  of  master   and  slave  is 
said  to  have  existed  between   them 
may  be  shown  by  the  claimant,      ib 

6.  The   general    rule   of  evidence   in 
regard  to  the  proof  of  the  laws  of 
the   various    states   of  the   Union, 
stated  in  Greenleaf 's  Evidence,  $  489, 
has  not  been  adopted  by  the  courts 
of  the  state  of  New  York,   and   is 
not  the  rule  therein,  excepting  so  far 
as  it  is    enacted  by  the  act  passed 
April  12,  1848,  entitled  "  an  act  re- 
lative  to  the  proof  of  the  statute  and 
common   law  of  other   states,  &c.M 
(p.  442.)  ik 

7.  The  provision    of  the   New  Code, 
that  no  person  shall  be  excluded  as 
a  witness  by  reason  of  his  interest 
in  the  event  of  the  action,  does  not 
extend  to  cases   of  habeas  corpus, 


698 


INDEX. 


and  the  claimant  to  an  alleged  fugi-     3.  Th»  material  facts  alleged  in  the 


live  from  service  can  not  testify  in 
behalf  of  bis  claim.  ib 

8.  A  general   understanding  that  the 
Jaws  of  any  state  tolerate   slavery, 
does  not  exempt  a  judge  from  requir- 
ing lawful  evidence  thereof,  and  fail- 
ing to  give  such  evidence  the  claim- 
ant  of  an    alleged    fugitive  fails  to 
establish  the  main  point  in  his  case, 
issue  having   been    joined   thereon, 
that  the  person  was  bound  to  him  in 
service.  ib 

9.  It    being   sufficiently   proved   that 
the   alleged  fugitive   was    bound  in 
service  to  the  claimant,  yet,  if  the 
claimant,  instead   of  removing  him 
from    the   state  without  delay,  has 
detained   him    in   his  own  custody, 
that  is  a  sufficient  reason  why  the 
person  is  entitled  to  his  discharge. 
There  is   only  one  case   in  which  a 
fugitive  slave   can   be  kept   by   his 
master  in  his  personal  charge  in  this 
state,  and  that  is  under  the  law  of 
Congress,  to  take  him  without  delay 
before  the  proper  authority,  in  order 
to  obtain  the  certificate  necessary  for 
his  removal  from  the  state.     When 
it  appears  that  the  claimant   holds 
his   slave  in  this  state,  not  for  the 
purposes  contemplated  in  the  act  of 
Congress,  but  that  he  holds  him  as 
his  slave  because  he  owes  him  servi- 
tude, it  is  the  duty  of  the  judge  to 
order  him  to  be  discharged  from  cus- 
tody, ib 


H 


HABEAS  CORPUS. 

1.  Tht  adjudication  of  an  officer  hav- 
ing power  to  issue  and  decide  upon 
a  writ  of  habeas  corpus,   may  be  set 
up  as  res  adjudicata   upon  any  sub- 
sequent writ  of  habeas  corpus,  and 
is  conclusive  upon  the  same  parties, 
when  the  subject  matter  is  the  same, 
and  there  are  ncr-  new  facts.     In  re 
De  Costa.  129 

2.  The  parties  are  the    same,  where 
the  writ  is  issued  on  behalf  of  the 
same   person,  against  the  same  re- 
spondent, although  the  relators  are 
different.  ib 


return,  which  are  not  denied  by  the 
party,  brought  up  must  be  taken  to 
be  true.  ib 

4.  On    habeas    corpus,    how   far   the 
court  or  officer  granting  it,  tire  bound 
by  the  return,  or  may  go  behind  it. 
The  People  v.  Martin.  Ib7 

5.  In  criminal  cases  where  an   indict- 
ment has  been  found,  he  can  not  go 
behind  the  indictment,  because  there 
are  no  means  of  ascertaining  upon 
what  the  indictment  was   founded. 

ib 

6.  But  on  a  commitment  before  indict- 
ment,   the  whole  question   of  guilt 
or  innocence  is  open  for  examination 
on  the  return  to  the  writ  of  habeas 
corpus,  and  the  inquiry  is  not   ne- 
cessarily confined  to  an  examination 
of  the  original  depositions.  ib 

7.  In   such  cases,  under  our  revised 
statutes,  the  proceedings  on  a  habeas 
corpus  are  in  the  nature  of  an  appeal 
from  the  decision  of  the  committing 
magistrate.  ib 

8.  Where,  on  a  return  to  a  writ  of 
habeas   corpus,  it  appears   that  the 
prisoner  was  detained  by  virtue  of 
a  warrant  issued  by  a  police  justice, 
upon  complaint  on  oath,  the  officer, 
before  whom   the  habeas   corpus  is 
pending,    has   a  right  to  go  behind 
the  warrant  and  inquire  into  the  le- 
gality of  the   imprisonment.     The 
People  v.  Tompkins,  224 

9.  Forms  of  writs  of  habeas  corpus 
and    certiorari,     of    tMe   allowance 
thereof,  and  of  the   return    thereto. 

ib 

See  FUGITIVES  FROM  JUSTICE,  7. 
FUGITIVES  FROM  SERVICE,  4. 
JURISDICTION,  5. 
LARCENY,  6. 


HOMICIDE. 

1 .  Whether  a  homicide  was  justifiable 
under  the  statute  is-tobe  determined 
by  the  jury  from  their  conviction 
whether  there  was  reasonable  i  rouna 


INDEX 


699 


for  the  accused  to  apprehend  great 
personal  injury,  and  not  from  the 
fact  that  the  accused  did  in  fact  en- 
tertain such  apprehension.  The  Peo- 
ple v  Austin,  154 

2.  Whether  a  homicide  is  excusable  or 
not,  must  depend  in  a  great  measure 
upon  the  nature  of  the  weapon  used 
and  the  manner  in  which  it  was  used. 
Killing  by  intentionally  firing  a  pis- 
tol into  a  crowd  can  not  be  said  to  be 
by  accident  or  misfortune      To  con- 
stitute murder  there  must  be  an  in- 
tention to  kill,  in  all  cases,  except 
where  the  perpetrator  is  at  the  mo- 
ment engaged  in  committing  a  felo- 
ny, ib 

3.  Any  killing  without  a  design  to  ef- 
fect death,  unless  it  is  justifiable  or 
excusable,  is  manslaughter  only,    ib 

4.  Implied  malice,  constituting  killing 
without  an   intention  to  kill,  mur- 
der, is  not   recognized   in  our  law. 

ib 

5.  Recent   provocation,    and   the   fact 
that  the  passions  have  hot  had  time 
to  cool,  do  not  under  our  statute  mit- 
igate a  killing  with  a  design  to  effect 
death  from  murder  to  manslaughter. 
Such  killing  is  murder,  whether  the 
design  to  effect  death  was  formed  on 
the  instant  or  had   previously  been 
entertained.  ib 

6.  The  -intention  to    take  life   consti- 
tutes,  under  our   statute,  the  main 
distinction  between  murder  and  man- 
slaughter, ib 

See  MURDER. 


INCEST. 

1.  On  the  trial  of  an  indictment  for  in- 
cest, charged  to  have  been  committed 
by  a  father  with  his  daughter,  the 
declarations  of  the  defendant  are  com- 
petent evidence  upon  the  question  of 
consanguinity.     The  People  V.  Har- 
irfen,  344 

2.  The  statute  in  such  case  is  only  ap- 
plicable to  cases  in  which  the  sexual 


i:  tercourse  is  by  mutual  consent. 
\t  here  it  is  accomplished  by  force  it 
is  punishable  only  as  rape.  •>!• 


INDICTMENT. 

1.  Where  an  indictment  contains  seve- 
ral counts  charging  the  same  offence 
in  different  forms,  the  prosecution 
will   not   be  compelled  to  elect  on 
which  count  they  ask  a  conviction. 
Such  election  will   be  directed  only 
when  the  several  counts  charge  sep- 
arate   and    distinct    offences.     The 
People  v.  Jlustin.  154 

2.  In  a  criminal  case,  one  good  count 
is  sufficient  to  support  a  general  ver- 
dict   of    guilty,    though    the   other 
counts  in  the  indictment  are  defect- 
ive.    The  People  v.  Stein.  202 

3.  Where  a  verdict  in  a  criminal  case 
is  appropriate  to  one  or  more  good 
counts  in  an  indictment,  and  can  be 
deemed  to  have  been  passed  upon  and 
disposed    of    the    others,    the   good 
counts  are  established  and  the  verdict 
will    stand,    notwithstanding    there 
may  be  bad  counts  in  the  indictment ; 
but  if  it   appear   that  some  of  the 
counts  are  undisposed  of  by  the  ver- 
dict, the  judgment  rendered  on  such 
verdict  will  be  reversed.     Baron  v. 
The  People,  246 

4.  Where,  in  an  indictment  for  burgla- 
ry,   the   building    charged   to  hare 
been  entered  w  as  laid  as  the  shop  of 
William  S.  Amigh,  it  was  held  no 
variance  that  the  shop  was  used  in 
the  business  of  one  Winters,  of  whom 
Amigh  was  the  agent,  it  appearing 
that  Amigh   hired  and  paid  for  the 
shop   and    that     it   was    under  his 
charge.     The  People  v.  Smith,     329 

5.  In  an  indictment  for  larceny,  it  is 
sufficient  if  goods  stolen   are  laid  as 
the  goods  and  chattels  of  the  bailee. 

ib 

6  Thus  where,  in  an  indictment  for 
ourglary  and  larceny,  the  property 
stolen  was  laid  as  the  goods  and  chat- 
tels of  William  S.  Amigh,  and  it  ap- 
peared in  evidence  that  the  goods 
stolen  belonged  to  one  Winters,  and 
that  Amigh  had  the  lawful  custody 


700 


IXDF.X. 


of  them  fi'om  Winters  with  authority 
to  sell  them  ami  account  for  the  pro- 
ceeds, it  was  held  no  variance.  ib 

7.  Under  a  plea  of  not  guilty,  a  defend- 
ant can  not  avail  himself  of  the  fact 
that  the  defendant  has  been  indicted 
by  a  wrong;  name.  ib 

S.  tn  a  case  where  the  sufficiency  of  an 
indictment  is  not  involved  in  some 
decision  made,  or  opinion  advanced 
at  the  trial,  ihe  only  mode  of  reach- 
ing a  defect  in  the  indictment  is  on 
a  motion  in  arrest  of  judgment,  or  by 
a  writ  of  error  brought  on  the  record 
of  judgment  itself.  The  People  v. 
Stockham,  424 

9.  If  an  indictment  for  a  statutory  of- 
ferice  alleges  all  the  facts  which  the 
statute  requires   to   constitute    the 
offence  this  as  a  general  rule  is  suf- 
ficient, ib 

10.  Where  an  indictment  charged  that 
the  accused  administered  to  one  A. 
D.,   a   pregnant  woman,    a  certain 
medicine  and  drug,  and  used  and  em- 
ployed upon  her  body  a  certain  in- 
strument, with  intent  to  procure  the 
miscarriage  of  the  said  A.  D.,  contra 
formam  statuti,   &c.,  held  that  the 
facts  charged  were  sufficient  to  con- 
stitute a  misdemeanor,  under  the  act 
of  May  13,    1845,    to   prevent   the 
procurement  of  abortion.  ib 

11.  The  decision  in  The  People  v.  Loh- 
man,  (2  Barb.  S.  C.  Rep.  220,)  upon 
this  point  approved  and  adopted,     ib 

12.  Two  distinct   offences,    requiring 
different   punishments,   can    not  be 
alleged  in  the  same  count  of  an  in- 
dictment; such  an  indictment  is  bad 
for  duplicity  and  a  conviction  upon 
it  will  be  reversed  on  error.     Reed 
v.  The  People,  481 

13.  Where,  in  the  same  count   of  an 
indictment,  the  defendant  was  charg- 
ed with  a  common  law  nuisance  and 
also  with  a  violation  of  a  regulation 
of  a  board  of  health,  under  the  fourth 
section  of  the  ' '  act  for  the  preserva- 
tion of  the   public   health,"  passed 
April  10,  1840,  the   count   was  ad- 
judged to  be  double,   the  former  of- 
feuce   being  punishable  by  fine  not 


exce  ding  $250,  or  imprison  nent  not 
exceeding  one  year,  or  both,  (2  R.  S. 
697,  $$  40.  41,)  and  the  latter  being 
punishable  by  fine  not  exceeding 
$1900  or  imprisonment  not  exceed- 
ing two  years,  or  both.  Sest.  Laws 
of  1850,  p.  692,  $4.)  ib 

14.  What  allegations  in  an  indictment 
are  sufficient   to  charge  a   common 
law  nuisance  considered.  t'6 

15.  In  an  indictment  for  receiving  sto- 
len goods,  it  is  not  sufficient  to  allege 
that  the  defendant  received  the  stolen 
property  knowing  it    to    be  stolen, 
but  it  is  necessary  to   aver  that  the 
property  was  received  with  a  feloni- 
ous or  fraudulent  intent.     The  Peo- 
ple v.  Johnson,  564 

16.  If  there  be  no  such  averment  in  the 
indictment,  the  defendant  may  avail 
himself  of  the  defect   by  demurrer, 
writ  of  error,  or  motion  in  arrest  of 
judgment.  ib 

17.  Form   of  an  indictment  for  petit 
larceny  charged  as  a  second  offence. 
The  People  v.  Caesar.  645 

See  ARSON,  1,  7,  8. 
EVIDENCE,  40. 
PERJURY. 

RECEIVING  EMBEZZLED  GOODS. 
RECEIVING  STOLEN  GOODS,  2,  3. 
SEDUCTION,  2,  6. 


INSANITY. 

1 .  Every  man  is  presumed  to  be  sane 
till  the  contrary  is  shown.    The  bur- 
then of  proof  of  insanity  to  overcome 
such  presumption  rests  upon  the  ac- 
cused.    Lake  v.  The  People,         495 

2.  Opinions  of  medical  witnesses  upon 
a  case  of  alleged  insanity  with  their 
statements  of  the  symptoms  and  evi- 
dences of  insanity.  ib 

3.  Where  the  question  to  be  determined 
by  the  jury  is  the  -sanity  of  a  person, 
both  the  acts  and  cVlarations  of  the 
person  are  evidence,  for  the  purpose 
of  ascertaining  the  state  of  mind  of 
the  actor.  16 


INDEX. 


01 


i.  \Vhere.  on  a  trial  for  murder,  the 
defence  set  up  his  insaniiy,  evidence 
may  be  received  of  the  acts  and  de- 
clarations of  the  accused  as  well  be- 
fore and  after  as  at  the  time  of  the 
homicide.  ib 

5.  But  it  is  not  competent  to  prove  the 
effect  which  the  prisoner's  conduct 
had   on  the  mind  of  another  person 
on  the  day  before  the  homicide,  nor 
the  acts,  nor  declarations  of  the  per- 
son killed,  then  made,  in  the  absence 
of  the   prisoner.      The   previously 
expressed  opinion  of  the  person  killed 
is  not  admissible   evidence   on   the 
question  of  insaniiy,  nor  would  such 
persons,  if  living,   be  permitted  to 
testify  to  such  opinion.  ib 

6.  If  a  medical  witness  has  heard  only 
a  part  of  the  testimony  on  which  the 
prisoner's  counsel  relies  to  establish 
his  defence,  it  is  erroneous  to  permit 
such  witness  to  give  his  opinion  as 
to  the  prisoner's  sanity,  where  such 
opinion  is  founded  on  the  portion  of 
the  testimony  so  heard  by  him.      ib 

7.  To  make  the  opinions  of  experts  ad- 
missible, they  must  be  founded  on  a 
given   state   of  facts,  which   should 
embrace  all  the  facts  relied  upon  to 
establish  the  theory  claimed.  16 

3,  Where  insanity  is  interposed  as  a 
defence,  its  existence  must  be  estab- 
lished by  affirmative  proof,  every 
person  being  presumed  to  be  sane 
till  'the  contrary  is  proved.  The 
People  v.  Robinson,  649 


INTENT  TO  KILL. 

An  indictment  under  the  Revised  Stat- 
utes charging  the  committing  of  an 
assault  and  battery  with  a  deadly 
weapon,  with  the  intent  to  kill,  is 
sustained  by  proof  of  having  done  the 
act  with  intent  to  commit  any  feloni- 
ous homicide;  it  is  not  necessary  to 
prove  an  intent  to  murder.  The 
People  v.  Shaw,  327 

INTOXICATION. 

It  is  no  defence  to  an  indictment  for 
murder  that  the  prisoner  was  in- 


to tcicated  at  the  time  of  the  commis- 
sion of  the  offence.  The  law  holds 
a  person  responsible  for  a  criminal 
act,  though,  at  ihe  time,  he  was  in- 
toxicated to  such  an  extent  as  to  be 
unconscious  of  what  he  was  doing. 
The  People  v.  Robinton,  649 


JURISDICTION. 

1.  The   court   of  last  resort    in   this 
state  is   the  exclusive  judge  of  its 
own  jurisdiction,  and  its  decision  on 
that  point  can  not  be  questioned   by 
the  court  below,  when  directed   to 
carry  into  effect  a  judgment  of  re- 
versal; but  where  the  jurisdictional 
question  has  not  been  decided  by  the 
court  of  last  resort,  it  is  open  to  ex- 
amination in  the  court  below.      The 
People  v.  Clark,  360 

2.  A     sentence    inflicting    corporeal 
punishment  can  not  be  pronounced 
in  the  absence  of  the  defendant;  but 
the  personal  presence  of  the  defend- 
ant is  not  necessary  where  a  fine  only 
is  interposed.  ib 

3.  On  a  writ  of  error   brought  to  re- 
verse a  judgment  in  a  capital  case, 
the    personal   attendance  of  the  de- 
fendant on  the  argument  or  at  the 
decision  in   the   appellate  court,  is 
not  necessary  to  give  such  court  ju- 
risdiction. ii 

4.  Where  an  offence  was  committed 
on   navigable   tide  waters,    wholly 
within  the  state  of  New  York,  and 
the   United    States   courts   and    the 
state    courts    assumed   jurisdiction 
thereof,  the  former  prior  in  point  of 
time  to  the  latter,  it  was  held,  on  a 
writ  of  habeas  corpus,  issued  to  test 
the  legality  of  the  latter  arrest,  that 
the  conflict  of  jurisdiction  could  not 
be  avoided  by  setting  up  judgment 
pronounced  in  one  of  the  tribunals, 
which,  when  obtained,  would   be  a 
bar  to  the  proceeding   ir.  the  other. 
The  People  v.  Sheri/of  Wettchetter, 

659 

6.  It  was  also  held  to  be  by  no  means 
clear,  that  the  state  courts  bad  not 


INDEX. 


jurisdiction  over  the  subject  matter 
of  the  offence,  whereof  jurisdiction 
had  already  been  exercised  by  the 
United  States  tribunals.  At  all 
events,  the  question  considered  too 
important  to  be  decided  summarily 
on  habeas  corpus.  ib 

Set  COUHT  OF  SESSIONS,  4. 


JURY. 

I  In  criminal,  as  well  as  in  civil 
oases,  except  in  a  criminal  prosecu- 
tion 1'or  libel,  it  is  the  duty  of  the 
court  to  decide  the  questions  of  law 
and  of  the  jury  to  decide  the  ques- 
tions of  fact.  The  People,  v.  Finne- 
ga«,  147 

£.  The  credibility  of  witnesses  is  ex- 
clusively a  question  for  the  jury, 
and  it  is  not  erroneous  in  the  court 
to  refuse  to  charge  the  jury  how 
they  ought  to  find,  in  a  case  resting 
on  the  credibility  of  witnesses. 
IVoodin  v.  The  People,  404 

8.  It  seems,  that  the  jury  are  no  more 
judges  of  the  law  in  criminal  than 
in  civil  cases,  Saffbrd  v.  The  Peo- 
ple, 474 

4.  In  criminal    trials,  the  jury  have  a 
right  to  decide   both  as  to  the  law 
and  facts  of  the  case.     The  court  is 
bound  to  decide  the  questions  of  law 
and  to  state  them  to  the  jury,  but 
the  jury  have  a  right  to  disregard 
the  decision  cf  the  court  upon  ques- 
tions of  law,  especially  in  favor  of 
life,  if  they  are  fully  satisfied  that 
such  decision  is  wrong.     The  deci- 
sion of  questions  of  fact  belongs  ex- 
clusively to  the  jury,  though  it  is 
the  right,  and   sometimes   the  duty 
of  the  court  to  comment   upon  the 
evidence,  for  the  purpose  of  present- 
ing  such  questions   {/roperly  to  the 
consideration    of    the     jury.       The 
People  v    Thayers,  596 

5,  In     criminal   cases,    the    jury   are 
judges  both  of  law  and  facts.    They 
have  a  right  to  disregard  the  opinion 
of  the  court  in  a  criminal  case,  even 
upon  a  question  of  law,  if  they  are 
fully  satisfied  that  such   opinion  is 
wrong.      The  People  v.  Videto,    603 


5.  The  finding  of  the  jury  at  th« 
Oyer  and  Term'ner  upon  a  mere 
question  of  fact,  oan  not  be  reviewed 
by  the  appellate  court  on  a  writ  of 
error,  although  it  appear  affirma- 
tively that  the  bill  of  exceptions 
contains  all  the  testimony  given  on 
the  trial.  Colt  \.  The  People,  61  i 

See  CHALLENGE  OF  JURORS. 
NEW  TRIAL,  1,  2,  3. 
TRIAL/  10,  11. 


K 

KINGS  COUNTY. 

See  CONVICTION,  3. 


LARCENY. 

1.  The  finder  of  property  who  knows 
the  owner,  or  has  reason  to  believe 
who  he  is,  is  bound  to  restore  it,  and 
is  guilty  of  larceny,  if  he  fraudulently 
converts  it  to  his  own  use.  The 
People  v.  Swan,  9 

2  Form  of  an  indictment  for  petit 
larceny  charged  as  a  second  offence. 
The  People  v.  Casar,  645 

3.  The  statute  declaring  a  second   of- 
fence of  petit  larceny  to  be  punish- 
able in  the  state  prison  is  not  appli- 
cable  to  a  case   in    which   the    first 
conviction    took    place    in   another 
state.  ib 

4.  And  where  a  defendant  pleaded  guilty 
to  an  indictment  charging  petit  lar- 
ceny as  a  second  offence  and  it  ap- 
peared by  the  indictment  that  the 
first  offence  was  committed  and  the 
first  conviction  had   in  the  state  of 
Massachusetts,   it  was  held  that  the 
defendant  could  only  be  punished  for 
simple  larceny.  tft 

5.  At  common  Jaw  a  dog  was  not  the 
subject  of  larceny-,  but  it  seems  the 
law  in  this  respect  has  been  changed 
by  the  Revised  Statutes,  which 
recognize  dogs  as  property,  bv  §ub- 


INDEX 


703 


jecting  them  to  taxation,  and  define 
larceny  so  as  to  cover  the  taking 
and  carrying  away  of  all  kinds  of 
property,  except  the  freehold  and 
things  which  are  parcel  of  it.  The 
People  v.  Maloney,  593 

6.  Where  a  person  was  indicted  for 
grand  larceny,  in  stealing  a  New- 
foundland dog  of  the  value  of  $100. 
the  property  of  R.  T.  and  arrested 
on  a  warrant  issued  on  such  indict- 
ment, after  a  hearing  on  habeas  cor- 
pus before  a  justice  of  the  Supreme 
Court  at  Chambers,  his  discharge 
was  refused.  ib 

See  EVIDENCE,  34. 
INDICTMENT,  5,  6,  17. 


LICENSE. 

)  The  statute  requiring  a  license  to 
sell  strong  and  spirituous  liquors  in 
small  quantities,  does  not  conflict 
with  the  8th  and  10th  sections  of  the 
constitution  '>f  the  United  States. 
Smith  and  Bi  nee  v.  The  People,  58S 

2.  A  siate  h?.  ihe  right,  in  adopting 
gene»al  iff/  lations  in  regard  to  its 
internal  t  f&  /s.  to  impose  restrictions 
on  the  sale  of  goods,  and  to  license 
persons  to  pursue  a  particular  busi- 
ness, and  the  exercise  of  such  power 
on  the  part  of  the  state,  will  not  be 
deemed  an  additional  duty  upon  im- 
ports, though  such  restrictions  and 
license  extend  to  imported  goods,  as 
well  as  to  those  of  domestic  origin,  (a) 

ib 
(a)  See  8  How.  U.  S.  R.  504. 


M 

MANSLAUGHTER. 

See  HOMICIDE. 
MURDER. 
TRIAL. 

MISDEMEANOR. 

Set  CONVICTION,  1,  2. 
LICENSE. 
NUISANCE. 


MISNOMER. 

See  PLKA. 

MOTIVE. 

The  existence  or  want  of  motive  to 
commit  the  crime  alleged  is  always 
a  legitimate  subject  of  inquiry.  The 
weight  to  which  such  evidence  is  en- 
titled in  different  cases  stated  and 
discussed.  The  People  v.  Robinson, 

649 

See  MURDER,  8. 
EVIDENCE,  3,  30. 

MURDER. 

1 .  On  a  trial    for    murder,   the  dying 
declarations  of  the  deceased,  that  is, 
declarations  made  under  the  appre- 
hension of  death,  are  competent  evi- 
dence against  the  prisoner;  but  be- 
fore such  declarations  are  received, 
it  must  be  satisfactorily  proved  that 
the  deceased,  at  the  time  of  making 
them,  was  conscious  of  the  danger 
and  had  given  up  all  hope  of  recove- 
ry.     The  People  v.  Green,  1 1 

2.  Where,  by  the  direction  of  the  at- 
tending physician,  and    in    his  pre- 
sence, VV.  informed  the  deceased  on 
the   day  before  her  death,  that  she 
could  not  live,    whereupon  the    de- 
ceased  requested  the   physician    to 
hear  a  communication  that  she  de- 
sired to  make,  and  with  his  consent 
she  proceeded  to  give  a  history  of  the 
conduct  of  the    prisoner  during  her 
illness,  tending  to  show  that  he  had 
several    times,  during   such  illness, 
administered  arsenic  to  her.  held  that 
such  communication  was  admissible, 
as  her  dying  declaration.  ib 

3.  Where,  on  the  trial  of  a  capital  case, 
several  witnesses  are  to  be  examined 
to  the  same  point,  the  court  may  in 
its  discretion   require  all  such  wit- 
nesses, except  the  one  under  exami- 
nation,   to   leave  the    room,  during 
such  examination.  ib 

4.  The  possession  by  a  prisoner  of  an 
unanswered  letter,  found  in  his  pock- 


704 


INDEX. 


et,  at  the  time  of  his  arrest,  is  not, 
of  itself,  evidence  of  the  contents, 
and  it  can  not  be  read  in  evidence 
against  him  on  the  trial.  16 

5.  The  maxim,   qui  facet  consentire  vi- 
detur  is  not  applicable  to  such  a  case, 
nor  is  it  generally  applicable,  except 
to  verbal  conversations  and  to  certain 
communications  in  writing  in  mer- 
cantile transactions.     It  can  not  be 
applied  to    facts  stated   in  a   letter 
which  a  party  is  not  bound,  or  in- 
terested to  answer.  t"6 

6.  Where  a  party  has  called  a  witness, 
and  proved    by  him  a  conversation 
had  with    the   opposite   party,   the 
party  whose  conversation  has   been 
proved  can  not,on  cross-examination, 
prove  by  the  witness  a  subsequent 
conversation  between  the  party  cross- 
examining   and    the  witness,  which 
took  place  two  or    three    hours  after 
the  first  conversation,   though  such 
subsequent   conversation  was   upon 
the  same  subject  as  the  first  conver- 
sation and  in  explanation  of  it.        ib 

7.  And  though  the  party  calling  the 
witness  prove  the  fact  that  there  was 
a  subsequent  conversation,  that  does 
not  entitle  the  party  cross-examining 
the  witness  to  prove  what  was  said 
at  such  subsequent  conversation,    t'6 

8.  What  facts  must   be  established  to 
convict  on  the  trial  of  an  indictment 
for  murder — the  distinction  between 
positive  and  circumstantial  evidence 
and  the    comparative  reliability  of 
each — the  reasons    for   proving  and 
the  character  and  value  of  dying  de- 
clarations— *ne  question  of   motive 
— and  the  cases  in  which  the  accused 
may  avail  himself  of  a  previous  good 
character — stated   and   discussed  in 
the  charge.  ib 

9.  Form   of  a   warrant   of  execution 
(note  a.)  ib 

10.  Where   on   a  trial   for   murder,  it 
appeared  that  the  prisoner  and  the 
deceased  had  been  engaged  in  a  fight 
or  scuffle  in  the  public  highway,  and 
the  prisoner,  after  knocking  down  the 
deceased,  took  from   the  stone  wall 
a  large  stone,  and,  with  both  hands, 
threw  it  upon    the    head  of  the  de- 
ceased so  as  to  break  in  his  skull  and 


cause  his  death,  and  the  presiding 
judge  charged  the  jury  that  if  they 
believed  the  deceased  came  to  his 
death  by  a  blow  from  the  stone 
thrown  against  him,  the  case  was 
capable  of  being  regarded  as  a  case 
of  murder,  under  the  second  subdi- 
vision of  the  section  defining  murder, 
the  charge  was  held  to  be  erroneous 
and  a  new  trial  was  granted.  The 
People  v.  Johnson,  291 

1 1 .  Where  the  facts  of  a  case  bring  it 
within  any  of  the   degrees  of  man- 
slaughter, it  can  not  fall  within  any 
definition  of  murder.  i6 

12.  Where  death  is  feloniously  caused 
in  a  cruel  and  unusual   manner,  and 
in  the  heat  of  passion,  the  character 
of  the  crime  depends  on  the  intent; 
if  done  without    a   design    to    effect 
death,  it  is  manslaughter  in  the  se- 
cond degree,  if  done  with  premedita- 
ted design,  it   is    muHer    under  the 
first  subdivision  of  the  section  defi- 
ning murder.     But    if  done    in    the 
heat  of  passion,  it  can  not,  whatever 
may  have  been  the  design,  be  classed 
under  the  second  subdivision  of  the 
section  defining  murder.  Cases  stated 
in  illustration  of  the  class  supposed 
to  be  covered  by  the  second  subdi- 
vision of  the  section  defining  mur- 
der.    Per  BARCULO,  J.  t'6 

13.  Where,  on  a  trial   for  murder  by 
poisoning,  the  deceased,  on  the  third 
day  of  her  illness,  said  to  her  female 
attendant   that  she  expected  to  die 
because  she  was  poisoned,  and  also 
expressed  a  similar  opinion  at  a  sub- 
sequent time,    and   at  no  time  ex- 
pressed an  opinion  that    she  should 
recover,  her  declarations,  made  after 
the  third  day  of  her  illness  down  to 
the  time  of  her  death  on  the  twelfth 
day  of  her  illness,  were  received  as 
evidence,  although  it  did  not  appear 
that  either   of  her   attending  physi- 
cians had  told  her  she  was  going  t> 
die,  and  although   it  appeared  that 
one   of  the   physicians,  not    under- 
standing the  cause  of  her  illness,  had 
spoken  to  her  encouragingly  of  her 
prospect  of  recovery.      The  People  v. 
Grunzig,  '299 

14.  To  entitle  the  prosecution,  on  a 
trial  for  murder,  to  introduce  evi- 
dence of  the  dying  declarations  of 
the  deceased,  it  must  appear  by  the 


INDEX. 


705 


preliminary  evidence,  that  the  de- 
clarant knew,  or  believed,  his  injury 
was  mortal  and  that  death  was  ra- 
pidly approaching.  This  may  be 
shown  by  the  expressions  and  con- 
duct of  the  deceased,  or  by  other 
satisfactory  evidence.  The  People  v. 
Knickerbocker,  302 

15.  After  the  introduction  of   the  pro- 
per preliminary  evidence,  the  prose- 
cution is  entitled  to  show  such  dying 
declarations,  notwithstanding  there 
may   DC  other   witnesses  by  whose 
testimony  the  same  facts  might  be 
proved,  which  are  sought  to  be  es- 
tablished by  such  dying  declarations. 

ib 

16.  Under  the   Revised   Statutes  of 
New  York,  declaring  the  killing  of 
a  human  being  to  he  murder,  when 
done  from  a  "  premeditated  design  " 
to  effect   the  death  of   the   person 
killed,  it  is  erroneous  to  charge  the 
jury,  that  the  act   must  be  murder, 
if  the  intent  to  kill  was  formed  at 
the     instant   of    striking   the   fatal 
blow.     Sullivan  v.  The  People,   347 

19.  Premeditation,   as  well  as  design, 
is   now   a   necessary   ingredient   in 
making  out  the  crime  of  murder, 
under  the  first  clause  of  the  section 
of  the  statute  defining  that  offence. 

ib 

20.  Form  of   an  indictment  for  mur- 
der, with  counts  at  common  law  and 
under  the  statute  and  form  of  a  writ 
of  error  to  remove  a  criminal  case 
from  the    Oyer    and    Terminer   to 
the    Supreme   Court.     Opinions  of 
medical   witnesses  upon   a  case  of 
alleged   insanity,    with   their  state- 
ments of   the   symptoms   and   evi- 
dences   of  insanity.     Lake  v.    The 
People,  495 

21.  Every  man  is  presumed  to  be  sane 
till   the   contrary  be  shown.     The 
burthen  of  proof  of  insanity  to  over- 
come such  presumption  rests  upon 
the  accused.  ib 

22.  The  nature  of  the  criminal  act, 
tne    degree    of    motive,     scientific 
opinions   given  on  the  trial  and  the 
legal  inferences  from  the  conduct  of 
the  prisoner,  discussed  in  the  charge 
to  the  jury. 


VOL.  I. 


89 


23.  Where  the  question  to  be  deter- 
mined by  the  jury  is  the  sanity  of 
a  person,  both  the  acts  and  declara- 
tions of  the  person  are  evidence  for 
the  purpose  of  ascertaining  the  state 
of  mind  of  the  actor.  ib 

24.  Where,  on  a  trial  for  murder,  the 
defence  set  up  is  insanity,  evidence 
may  be  received  of  the  acts  and  de- 
clarations  of  the  accused,    as   well 
before  and  after,  as  at  the  time  of 
the  homicide.  ib 

25.  But  it  is  not  competent  to  prove 
the  effect  which  the  prisoner's  con- 
duct had  on  the  mind  of  another  per- 
son on  the  day  before  the  homicide, 
nor  the  acts  nor  declarations  of  the 
person  killed,  then  made,  in  the  ab- 
sence of  the  prisoner.     The  previ- 
ously expressed  opinion  of  the  per 
son  killed  is  not  admissible  evidence 
on    the    question   of   insanity,    nor 
would    such   person,  if    living,    be 
permitted  to  testify  to  such  opinion. 

a 

26  If  a  medical  witness  has  heard 
only  a  part  of  the  testimony  on 
which  the  prisoner's  counsel  relies  to 
establish  his  defence,  it  is  erroneous 
to  permit  such  witness  to  give  his 
opinion  as  to  the  prisoner's  «anity, 
where  such  opinion  is  founded  on 
the  portion  of  the  testimony  so  heard 
by  him.  ib 

27.  To  make   the  opinion  of  experts 
admissible,  they  must  be  founded  on 
a  given  state  of  facts,  which  should 
embrace  all  the  facts  relied  upon  to 
establish  the  theory  claimed.  ib 

28.  Where    two    or    more    persons, 
jointly  indicted  for  murder,  are  tried 
together,    only   twenty  peremptory 
challenges  can  be  allowed  to  all  the 
defendants.     The  People  v.  Thayert, 

595 

29.  On  a  trial  for  murder,  it  appeared 
that  the  father  of  the  defendants  had 
been  arrested  and  examined  before  a 
magistrate  on  a  complaint  against 
him  for  the  same  murder,  and  that 
on  such  examination  one  of  the  de- 
fendants, who  was  also  at  the  same 
time   under  arrest  for   the  murder, 
came  forward  as  a  volunteer  witness 
and  testified  on  such  examination; 


706 


INDEX. 


Held,  that  his  statements,  made  un- 
der oath,  on  such  examination,  were 
admissible  in  evidence  against  him. 

ft 

30.  On  a  trial  for  murder,  it  is  com- 
petent for  the  public  prosecutor  to 
prove    what    the  defendant  testified 
to,    before  a  coroner's  jury,    at   an 
inquest  held  on  the  body  of  the  de- 
ceased,   though   it  appears  the   de- 
fendant with  other  persons    were  at 
the  time  under  arrest  for  the  alleged 
murder,  the  inquiry  on  such  inquest 
not  having  been  as  to  the  guilt  of 
the  defendant,  but  being  general,  to 
ascertain,  if  possible,  who  was  the 
murderer.  ib 

31.  It  is  no   defence  to  an   indictment 
for  murder  that  the  prisoner  was  in- 
toxicated at  the  time  of  the  commis- 
sion of  the  offence.     The  law  holds 
a  person  responsible  for  a  criminal 
act  though,  at  the  time,  he  was  in- 
toxicated to  such  an  extent  as  to  be 
unconscious  of  what  he  was  doing. 
The  People  v.  Robinson,  649 

32.  The  intent  to  do  bodily  harm  to 
some  one  out  of  a  number  of  per- 
sons   is    necessary,    under   the    2d 
subd.   of  sec.  5  of  2  Rev.  Stat.  p. 
657,  to  constitute  the  crime  of  mur- 
der,   even   where   the    homicide   is 
effected  by  an  act  imminently  dan- 
gerous to  others,  evincing  a  depraved 
mind,  regardless  of  human  life.   The 
People    v.    Sheriff   of    Wettchester, 

659 

22.  Dubitatur,  whether  there  should 
not  also  be.  an  intent  to  kill,  though 
not  aimed  at  any  particular  person. 

ib 

43.  Deaths  caused  by  the  burning  of 
a  steam  boat  which  results  from 
the  making  of  excessive  fires  for  the 
purpose  of  creating  excessive  steam, 
in  order  to  out-race  another  steam 
boat,  declared  not  to  come  under  the 
denomination  of  murder,  but  parties 
held  to  bail  for  manslaughter  in  the 
first  degree.  ib 

See  EVIDENCE. 
HOMICIDE. 
TRIAL. 


N 

NEW  TRIAL. 

1.  On  a  motion  for  a  naw  trial,  en  th« 
ground  of  the  improper  conduct  of  the 
jury,  the  affidavits  of  the  jurors  are 
not   admissible  to  prove   such    im- 
proper conduct.     The  People  v.  Cor- 
nal,  256 

2.  A  communication  made  to  a  jury 
while   deliberating,    by  a  party  in 
whose  favor  the  verdict  is  rendered 
will  avoid  the  verdict:  but  a  verdict 
will  not  be  set  aside  because  of  such 
communication,  where  it  is  made  by 
the  losing  party  or  by  a  stranger  to 
the  controversy.  ib 

3.  Where,  on  a  trial  for  murder,  while 
the  jury  were   consulting   together 
upon  their  verdict,  one  of  them  sent 
the  officer  in  charge  of  them  to  the 
court,  to   request  that   the   statute 
or  some  book  containing  the  law  of 
manslaughter  should  be  sent  to  them, 
the  officer  returned  and  informed  the 
jury  that  "  Judge  Edmonds  said  they 
had  nothing  to  do  with  manslaugh- 
ter," and   they  found  the   prisoner 
guilty  of  murder,  on  motion  before 
the  court  of  Oyer  and  Terminer  for 
a  new  trial,  on  the  ground  of  such 
communication  to  the  jury,  a  new 
trial  was  denied.  ib 

4.  Courts   of  Sessions,  as   organized 
under  the  judiciary  act  of  1847,  have 
not  power  to  grant  new  trials.     The 
People  v.  Court  of  Sessions.  369 

8.  Where,  in  a  court  of  Sessions,  the 
defendant  had  been  found  guilty  of 
arson  in  the  third  degree,  and  the 
court  granted  a  new  trial  upon  the 
merits,  and  refused  to  pass  sentence 
according  to  the  verdict,  it  was  held 
that  the  granting  of  a  new  trial  was  a 
nullity,  and  a  mandamus  was  award- 
ed to  compel  the  court  to  proceed  and 
pass  sentence.  ib 

6.  Semble,  that  a  court  of  Oyer  and 
Terminer  has  power  to  grant  new 
trials.  Per  JOHNSON,  J.  t'6 

7.  The  court  of  Oyer  and  Terminer 
has  power  to  grant  a  new  trial  on  the 


INDEX. 


merits,  after  a  defendant  has  been 
convicted  of  felony.  The  People  v. 
Morrison,  625 

f>.  The  cases  of  The  People  v.  The 
Judges  of  the  Dutchess  Oyer  and 
Terminer  (2  Barb.  S.  C.  R.  282,)  and 
the  United  States  v.  Gibert  (2  Swm- 
n«r,  19,)  reviewed  and  disapproved. 

ib 


NUISANCE. 

I.  It  is  only  where  a  regulation  of  a 
board  of  health  has  been  made  and 
published,  that  a  person  can  be  con- 
victed, under  the  4th  section  of  the 
act,  of  a  misdemeanor,  for  its  viola- 
tion. Reed  v.  The  People,  481 


2.  An  order  of  a  board  of  health  made 
ex  parte  and  adjudging  certain  pre- 
mises to  be  a  common  nuisance  and 
directing  the  cleansing  and  purifica- 
tion of  the  same,  within  three  days 
after  the  service  of  notice  of  such 
order,  is  not  such  a  regulation  as  is 
contemplated  by  the  fourth  section 
of  the  statute,  and  a  failure  to  com- 
ply with  such  order  03  not  subject 
the  person  offending  io  punishment 
for  a  misdemeanor,  under  the  section 
aforesaid.  ib 


2.  On  the  trial  of  an  indictment  for 
the  violation  of  such  an  order,  it  is 
not  competent  for  the  prosecution  to 
prove  affirmative  offensive  acts  on 
the  part  of  the  defendant,  while  en- 
gaged in  removing  the  cause  of  the 
nuisance.  But  it  is  competent  for 
the  defendant  on  such  trial,  to  show 
a  bona  fide  attempt  on  his  part,  to 
obey  the  order  in  question.  ib 


4.  On  such  trial,  it  is  a  defence  to  such 
indictment  to  prove  that  at  the  time 
of  the  making  and  service  of  the  or- 
der, the  defendant  resided  out  of  the 
bounds  of  the  village  corporation,  in 
which  such  board  of  health  was  or- 
fanized.  ib 

See  INDICTMENT,  13,  14. 


0 


OYER  AND  TERLMNER. 

1 .  Semble,  that  a  Court  of  Oyer  and 
Terminer  has  power  to   grant  npw 
trials.    Per  JOHNSON,  J.    The  Peo- 
ple v.  Court  of  Session*.  3M 

2.  The  court  of  Oyer  and  Terminer  has- 
power   to  grant   a  new  trial  on  the 
merits,    after  a   defendant  has   been 
convicted  of  felony.     The  People  v. 
Morrison,  625 

3.  The  question  whether  the  court  of 
Oyer  and   Terminer  is  a   superior 
court   of   general    jurisdiction    dis- 
cussed, ib 

4.  The  provision  of  the  Revised  Sta- 
tutes, (2   R.  S.  204,  $28,)  authori- 
zing the  Mayor,    Recorder  and  Al- 
dermen of  the  city  of  New  York,  or 
two  of  them,  to  sit  in  the  Oyer  and 
Terminer  held  in  that  city,  as  a  con- 
stituent part  thereof,  is  not  a  viola- 
tion of  Art.  IV,  Sec.  7,  of  the  state 
constitution  in  force  at  the  time  of 
its  enactment.     Colt  v.  The  People, 

611 

See  NEW  TRIAL,  8. 


PARDON. 

1.  The  power  conferred  upon  the  Ex- 
ecutive by  the  constitution  to  grant 
pardons,  includes  the  power  of  grant- 
ing a  conditional  pardon.      The  Pro- 
pie  v.  Potter,  47 

2.  Such  condition  may  be  banishment 
from  the   United   States    and  on  a 
breach  of  the   condition    ihe  pardon 
becomes  void,  and  the  criminal  may 
Se  remanded  on  his  original  sentence. 

ib 

3.  The  power  to  remand  him  can  be 
exercised  by  the  court  in  which  he 
was  convicted,  or   by  any  court   of 
superior  criminal  jurisdiction.        t* 


708 


INDEX. 


4.  A  person  convicted  of  perjury  is  an 
incompetent  witness,  though  he  has 
been  pardoned  by  the  Governor,  and 
the  pardon  purports  to  restore  him 
to  all  his  civil  rights,  the  legislature 
having  provided  that  such  convict 
shall  not  be  received  as  a  witness  till 
such  judgment  be  reversed:  such  is 
the  law,  though  the  exclusive  power 
of  pardon  be  vested  in  the  governor. 
Hovghtaling  v.  gclderhouse,  241 


PENITENTIARY. 

See  CONVICTION,  3. 

PERJURY. 

1.  Form  of  an  indictment  for  perjury 
in  falsely  swearing  that  usury  was 
taken    in  discounting1  a  promissory 
note.       The  People   v.    Burroughs, 

211 

2.  Where   it   does  not  appear  on  the 
face  of  the  record,  by  the  statement 
of  the  issue  and  evidence  in  the  in-, 
dictmcnt,  that  the  matter  alleged  to 
be  false  is  material,  it  is  sufficient  to 
aver  in  the  indictment  that  the  mat- 
ter, in  relation  to  which  perjury  is 
assigned,  became  and  was  material 
upon  the  trial.  *& 

3.  Where,  in  a  suit  brought  by  a  bank 
on  a  promissory  note,  the  defendant 
had  testified  as  a  witness  in  behalf 
of  the  endorser,  that  F.,  who  at  that 
time  was  president  of  the  bank,  had 
taken  usury  in  discounting  the  note, 
it  was  held,  on  a  trial  of  the  defend- 
ant for  perjury  in  giving  such  testi- 
mony, that  it  was  not  necessary  to 
set  forth  in  the  indictment  that  F, 
was  acting  in  the  transaction  as  an 
officer  of  said  bank,  or  in  what' par- 
ticular way  he  was  connected  with 
the  transaction,  but  that  it  was  suf- 
ficient in   the   indictment   to  allege 
that  it  became  a  material  matter  and 
question,  &c.,  whether  the  said  F. 
discounted  said  note,  and  whether  he 
took   usury  in  discounting  it.    and 
then  to  set  forth  particularly  the  tes- 
timony  of  the  defendant   on   those 
points  and  the  facts  as  they  actually 
existed,   which     were   inconsistent 
with  such  testimony,  with  the  usual 
allegations  of  falsity  and  corrupt  in- 
tent, ib 


4.  An  averment  in  an  indictment  that 
the  defendant  was  sworn  as  a  witness 
between  the  bank  and  J.  B.,  is  sus- 
tained  by  proof  that  the  .'efendant 
was  sworn  in  a  suit  brought  by  the 
bank  on  a   promissory  note  against 

VJ.  B.,  the  endorser,  and  S.  McF., 
and  the  defendarit,  as  'joint -makers, 
the  evidence  of  the  defendant  in  such 
case  being  only  available  in  behalf 
of  the  endorser.  t6 

5.  Where,  on  an  indictment  for  perjury 
in   having   sworn    falsely  as  to  the 
ability  of  the   defendant   to  become 
bail    for   a     prisoner  charged  with 
crime,  the  indictment   charged  that 
the  perjury  was  committed  upon  an 
examination   had  after  he  had  been 
previously  sworn  to   make- true  an- 
swers to  such  questions  as  should  be 
put  to  him,  touching   his  qualifica- 
tions and  competency  to  be  and  be- 
come bail,  &c.,  and  it  appeared  on 
the  trial,  that  after  the  at.swers  of 
the  defendant  to  certain  interrogato- 
ries had  been  taken  down  in  writing, 
an   oath  was  administered  to   him, 
*'  that  the  answers  to  the  foregoing 
interrogatories    by  him    subscribed 
are  each  and  every  of  them  true,"  it 
was  held  a  material  variance  and  that 
the  proof  did  not  support  the  indict- 
ment.    Smith  v.  The  People.       317 

6.  And  where  the  indictment  charged 
that  the  perjury  was  committed  on 
the  defendant's  offer  to  become  bail 
for   one    Thompson   committed    on 
McDonald's  complaint  in  default  of 
bail  for  $500,  and  the  evidence  show- 
ed the  perjury  to  have  been  commit- 
ted  on    defendant's  examination   as 
bail  for  Thompson  committed  on  the 
complaint  of  Sayre  and  others  in  de- 
fault of  $3000  bail,  it  was  also  held 
to  be   a  material  variance   and  that 
the  proof  did  not  support  the  indict- 
ment, rt 

7.  A  variance  between  an  indictment 
for  perjury  on  a  trial  before  a  referee 
and   the  evidence,  in    regard  to  the 
person  before  whom  the  referee  was 
sworn,  is  immaterial.     The  allega- 
tions and  proof  as  to  the  taking  of 
an  oath  by  the  referee  are  superfluous , 
he  acquired  jurisdiction  by  the  order 
of  reference  duly  made.     The  People 
V.  flfcGtwnw,  387 


INDEX. 


709 


PLEA. 


Under  a  plea  of  not  guilty,  a  defend- 
ant can  not  avail  himself  of  the  fact 
that  the  defendant  has  been  indicted 
by  a  wrong  name. 


See  SEDUCTION,  1. 

PROPERTY. 
««  LARCENY,  1,  5,  6. 

R 

RAPE. 

1 .  On  the    trial  of  an  indictment  for 
rape,  it  is  competent  for  the  counsel 
for  the  prisoner,  on  the  cross-exami- 
nation of  the  prosecutrix,  to  ask  her 
whether  the   treatment   complained 
of  "  was  with  her  consent  or  against 
her  will."     Woodin  v.   The  People, 

464 

2.  Such  a  question  is  not  objectionable 
in  form,   but  if  the  objection  to  it 
had  been  put  on  that  ground,  and  an 
exception  taken,  it  would  not  have 
been   available,    for   the   form   of  a 
question,  if  not  otherwise  objection- 
able, is  a  matter  of  discretion  with 
the  court.  ib 

3.  The  credibility  of  witnesses  is  ex- 
clpsively  a  question  for  the  jury, 
and  it  is  not  erroneous  in  the  court 
to   refuse  to   charge    the  jury  how 
they  ought  to  find,  in  a  case  resting 
on  the  credibility  of  witnesses,      ib 

4.  The  opinion  of  a  physician  upon  a 
question  not  involving  medical  skill 
or  science  is  not  admissible  evidence. 

a 

5.  Where  it  appeared  from  the  testi- 
mony of  a  physician  that  the  prose- 
cutrix for   an    alleged   rape  was  of 
more   than    ordinary   strength   and 
health,  and  that  the  defendant  was 
«ixty  years  of  age.  the  following  ques- 
tion, put  to  the  same  witness,    was 
held   to   be   incompetent.      u  From 
what  you   know  of  her  health  and 


strength,  in  youi  opinion.  couJd  th» 
defendant  have  had  carnal  connection 
with  her  against  her  will,  without 
resort  to  other  means  than  the  ex- 
ercise of  his  ordinary  physical  pow- 
ers?" Held,  that  this  was  a  question 
in  regard  to  which  the  jury  could 
judge  equally  well  with  the  witness, 
and  did  not  involve  medical  skill  or 
science,  and  was  not  a  case  for  an 
expert.  H 

6.  Held,    also,    that    the    question, 
whether  in  the  opinion  of  the  wit- 
ness a  rape  could  be  committed  on  a 
female  who  had  borne  children,  and 
also    was    in   ordinary    health    and 
strength,    without   resort   to   other 
means  than  the  exercise  of  ordinary 
physical   powers,  came  within  the 
same   rule    and    was    incompetent, 
though  the  prosecutrix  had  previous- 
ly  testified    that,  she  had  borne  two 
children  before  the  alleged  rape,  and 
that    the    ravishment    was    accom- 
plished   by   means   of  the   superior 
strength  of  the  prisoner.  ib 

7.  Where  the  prosecutrix  had  testified, 
that  as  soon  as  practicable  after  the 
alleged  rape  she  made  it  known  and 
complained  to  her  husband,  and  to 
her  mother  and  Judge  Jerome  and 
other   persons,     and    was    corrobo- 
rated by  the  testimony  of  her  hus- 
band as  to  the  disclosures  to  him. 
and  it  appeared  that  Judge  Jerome 
was  present  at  the  trial  and  was  not 
called  as  a  witness,  it  was  held  not 
to  be  erroneous  for  the  court  to  re- 
fuse to  charge  the  jury,  that  the  cor- 
roborating evidence  of  Judge  Jerome 
and  others  as  to  her  disclosures  was 
necessary  to  confirm  her  testimony 
and  entitle  it  to  full  credit;  and  held 
that  the  court  correctly  charged  the 
jury,  that  it  was  not  necessary  for 
the  people  to  call  the  other  persons 
referred  to  as  witnesses,  if  the  jury 
were  satisfied  that   the  prosecucrix 
or  her  husband  had  testified  truly,  in 
regard  to  the  communications  made 
by  her.  ib 

8.  To  warrant  a  conviction   for  rape 
under  the  2d  sub.  of  $  22,  2  K.  S., 
663,   it  ought  to   appear  that  there 
was  the  utmost  reluctance  and  the 
utmost  resistance  on  the  part  of  the 
prosecutrix.     The  People  v.  Morri- 
son, 625 

See  INCEST,  2. 


710 


INDEX. 


RECEIVING  EMBEZZLED  GOODS. 

1.  In  an  indictment  for  having  felon- 
iously received,  certain    goods   and 
chattels  which  had  been  .embezzled, 
knowing  them  to  have  been  embez- 
zled, it' is  not  necessary  to  aver  that 
the  person  embezzling  was  the  clerk 
or  servant  of  the  owner  of  the  goods 
and  chattels.     The  People  v.  Stein^ 

202 

2.  Where  several  persons  are  indicted 
for  feloniously   receiving  embezzled 
goods,  knowing  them  to  have  been 
embezzled,    all  who  are  proved  to 
have  confederated  in  the  transaction 
may  be   convicted,   though  the   re- 
ceiving was  at  different  times  and 
places,  and  though  all  were  not  pre- 
sent, ib 


RECEIVING  STOLEN  GOODS. 

1.  In  order  to  constitute  the  crime  of 
receiving     stolen    goods,    knowing 
them  to  have  been  stolen,  the  stolen 
property  must  be  received  felonious- 
ly, or  with  intent  to  secrete  it  from 
the  owner,  or  in  some  other  way  to 
defraud  him  of  the  property.     The 
People  v.  Johnson,  564 

2.  In  an  indictment  for  such   offence, 
it  is  not  sufficient  to  allege  that  the 
defendant  received   the   stolen   pro- 
perty knowing  it  to  be  stolen,  but  it 
is  necessary  to  aver  that  the  pro- 
perty was  so  received  with  a  felon- 
ious or  fraudulent  intent.  ib 

3.  If  there  be   no  such  averment  in 
the   indictment    the  defendant  may 
avail   himself  of  the  defect,  by  de- 
murrer, writ  of  error,  or  motion  in 
arrest  of  judgment.  ib 


RECOGNIZANCE. 

i.  A  recognizance  taken  in  a  court  of 
Oyer  and  Terminer,  for  the  appear- 
ance of  a  prisoner  at  a  court  of  Gen- 
eral Sessions,  to  answer  to  a  pending 
indictment,  must  be  entered  in  the 
the  mirutes  of  the  court,  or  it  will 
be  void.  Tht  People  v .  Graham,  141 


2  Such  entry  must  contain  all  the  sub- 
stantial parts  of  the  recognizance, 
such  as  the  acknowldgement  of  in- 
debtedness, the  offence  charged  and 
the  condition,  &c. ;  a  mere  memo- 
randum that  a  recognizance  in  a 
certain  sum. was  taken  is  not  suffi- 
cient.' .  -ib 

fr. 

3.  What  was  said  between  the  clerk 
.and  'the  bail,  on  the  taking  of  a  re- 
cognizance, can  not  be  proved  by  the 
certificate  of  the  clerk.  ib 

4.  A  recognizance,  conditioned  for  the 
appearance  of  M.  at  the  next  court 
of  Sessions,  to  be  held  at  the  court 
house  in  the  city  of  H.,  to  be  tried 
by  a  jury  on   two   indictments  for 
forgery,    is  to  be   construed   as   re- 
quiring the  appearance  of  M.  at  the 
next  court  of  Sessions  to  be  held  in 
the  city  of  H.  and  not  at  the  next 
court  of  Sessions  to  be  there  held  at 
which  a  jury  shall    be   summoned. 
The  People  v.  Derby,  392 

5.  And  where  such  a  recognizance  was 
taken  in   January,   1851,  and  at  a 
court  of  Sessions  held  in  June  follow- 
ing, M.  was  defaulted  and  his  recog- 
nizance declared  forfeited  and  ordered 
to  be  prosecuted,  and  in  an  action  on 
the  recognizance,  it  appeared  that  a 
regular  term  of  the  court  of  Sessions 
had  been  held  at  that  place  in  March 
of  the   same  year,  though  no  jury 
had  been  summoned  to  attend  at  said 
March  term,  it  was  held,   that  no 
breach  of  the  condition  of  the  recog- 
nizance bad  been  shpwn,  and  judg- 
ment was  given  for  the  defendant. 

ib 

6.  A  recognizance  taken  by  a  justice 
of  the  peace,  for  the  appearance  of 
the  accused  to  answer  to  a  criminal 
charge,  must  require  his  attendance 
at  the  next  criminal   court  having 
cognizance  of  the  offence.     The  Peo- 
ple v.  Mack,  567 

7.  Where  a  recognizance  was  condi- 
tioned for  the  appearance  of  the  ac- 
cused at  the  next  court  of  Oyer  ana 
Terminer,  to  be  held  in  the  county 
in  June  then  next,  and  it  appeared 
that  a  court  of  Sessions  was  appointed 
to  be  held,    and  was  in    fact   held 
in  the  same  county,  on  the  second 
Monday  of  May  of  the  same  year,  at 


INDEX. 


711 


which  a  grand  jury  was  required  to 
attend  and  did  attend  and  was  sworn 
and  heard  complaints,  such  court  of 
Sessions  having  cognizance  of  the 
offence  charged,  the  recognizance  was 
held  void,  and  in  an  action  upon  it 
against  the  bail,  judgment  was  given 
for  the  defendant,  ib, 

.  Where  a  .justice  of  the  peace  was 
authorized  to  hear  a  complaint  aird 
take  a  recognizance  only  in  the  ab- 
sence of  the  police  justice  residing 
in  the  same  town,  and  in  an  action 
on  a  recognizance  taken  by  such  jus- 
tice of  the  peace,  it  was  alleged  in 
the  answer  that  such  police  justice 
was  not  absent  from  the  town  when 
such  recognizance  was  taken,  but  no 
proof  on  that  point  was  introduced 
on  the  trial,  it  was  held  that  the 
legal  presumption,  in  the  absence  of 
proof,  was  that  the  justice  of  the 
peace  did  not  transcend  his  jurisdic- 
tion. i& 


RECORD. 

Ste  SUMMARY  CONVICTION. 
EVIDENCE,  No.  34. 
VAGRANCY. 


REFERENCE 

1.  An  action  for  a  divorce  for  adultery 
was,  under  the  Code  of  1851,  refer- 
rible.     The    People,    v.    McGinnis, 

387 

2.  It  is  not  necessary  to  a  valid  refer- 
ence of  an  action,  that  the  parties,  or 
their  attorneys,  subscribe  a  writing 
consenting  to  the  reference,  it  is  suf- 
ficient, if  an   order   of  reference   is 
entered  with   their   assent   in   open 
court;  that  is  a  "written  consent." 

ib 

3.  A  written  consent,  may  be  waived 
by  appearing  before  the  referee  and 
participating  iu  the  proceedings  on 
the  trial.  ib 

I,  An  order  of  the  court,  on  motion  of 
the  defendant's  attorney,  that  the 
plaintiff  pay  a  sum  of  money  for 
costs  and  alimony,  "on  condition 
that  the  defendant's  attorney  stipu- 
late with  the  pUintiff's  attorney  to 


refer  the  whole  issues  in  the  ac- 
tions," &c  .,  where  the  stipulation  is 
given  and  the  parties  proceed  to  trial 
before  the  referee,  is  a  sufficient  re- 
ference of  the  acf  ion.  ib 


ROBBERY. 

1 .  A   robbery  may  be  committed  by 
extorting  personal  property  from  the 
person   or    in   the    presence  of  the 
owner,  by  means   of  threats  of  an 
unfounded   criminal   charge,  where 
such    property  is  obtained  through 
fear  produced  by  such  threats.      Iht 
People  y.  McDanidx.  198 

2.  Where,  by  means  of  a  threat  to  ar- 
rest the  prosecutor,  on  a  charge  of 
having   been    guilty   of   the   crime 
against     nature    (the   charge   being 
groundless  and  known  to  be  so  to  the 
defendant.)   the  prosecutor,  through 
fear  of  such  threatened   arrest,  was 
induced  to  deliver  to  the  defendant 
$20  and  a  receipt  for  $13  owed  by 
the  defendant  to  the  prosecutor,  and 
to  promise  to  pay  the  defendant  $20 
more,  held,  that  the  defendant  was 
guilty  of  robbery  in  the  second  d«- 
gree.  ib 

3.  It  is  not   necessary  to  constitute 
such  offence  that  the  charge  against 
the  prosecutor  should   be   direct  or 
should  be  made  in  unequivocal  lan- 
guage.    It  is  enough  if  the  language 
used  was  intended  to   communicate 
such  a  charge  and  was  so  understood 
at  the  time  by  the  prosecutor.        it 


SEDUCTION. 

1.  To  an  indictment  for  the  seduction 
of  an  unmarried    female,  under  the 
act  of  1848,  the  defendant  interposed 
a  special  plea,  alleging   that  at   th- 
time   of    the    committing   the   . 
charged,  the  defendant  was,  and 
five  years  previous  thereto  had  bee. 
a  married  man,  having  a  living:  wilo 
and    family,  with   which  wife    and 
family  he  was   then    living,  all   of 
which  at  the  time  of  the  alleged  pro- 
mise and  seduction  was  well  known 
to  the  said  female;  on  demurrer  i« 


712 


INDEX. 


succ  special  plea,  the  facts  thus  set 
up  were  held  to  constitute  a  good 
defence  to  the  prosecution,  and  judg- 
ment was  given  for  the  defendant 
The  People  v.  dlger.  333 

2.  It  is  not  necessary,  in  drawing  an 
indictment   under  the  act  to  punish 
seduction  as  a  crime  passed  March 
22,   1848,  to  allege  mutual  or  valid 
promises  of  marriage.    It  is  sufficient 
to  aver,  in  the  language  of  the  act. 
that  the    prosecutrix   was   seduced 
under   promise   of    marriage.      Per 
PARKEB,  J.     Crazier  v.  The  People. 

454 

3.  Nor  is  it  necessary  on  the  trial  to 
prove  a  valid  and    binding  promise 
of  marriage.     If  the  seduction  was 
effected  by  means  of  a  promise    of 
marriage,  though  the  promise  was 
intended  to  be  and  was  in  fact  a  false 
pretence,  and  one  which  the  seducer 
knew  it  was  not  in  his  power  to  per- 
form,  the  offence    is    nevertheless 
within  the  statute.  ib 

4.  By  "  previous  chaste  character"  the 
statute   means   personal    chastity — 
actual  character — not  reputation.    In 
the   absence   of  proof  such  chastity 
will   be    presumed.     But   the   pre- 
gumption  may  be  overcome  by  spe- 
cific acts  of  lewdness  proved  affirma- 
tively, on  the  part  of  the  defendant. 

ib 

1 6.  The  evidence  contemplated  by  the 
statute  in  support  of  the  testimony  of 
the  female  is  not  confined  to  proof 
of  the  fact  of  illicit  intercourse,  but 
extends  to  proof  of  other  material 
facts,  such  as  the  illegitimacy  of  her 
child,  the  regular  and  frequent  visits 
of  the  defendant,  his  being  alone 
with  the  prosecutrix  at  late  hours  of 
night,  and  his  confessions  made  to 
.  others  on  the  subject  of  the  engage- 
ment to  marry  her,  &c.  But  it  is 
not  sufficient  to  corroborate  her  as  to 
immaterial  facts  contained  in  her 
testimony.  t& 

6.  On  an  indictment  under  the  "  act  to 
punish  seduction  as  a  crime."  passed 
in  1848,  the  defendant  may  show 
that  the  prosecutrix  was  not  of 
"  previous  chaste  character"  either 
by  proving  an  actual  want  of  chastity 
on  her  part,  or  by  showing  her  ge- 


neral bad  reputation  for  chastity. 
Per  HAND,  J.  Saflordv.  The  Peo- 
ple. 474 

7.  Where  the  illicit  intercourse,  be- 
tween the  prosecutrix  and  the  de- 
fendant, began  four  or  five  years  be- 
fore the  finding  of  the^indictment, 
and  continued  until  within  two 
years,  it  was  held  not  to  be  a  case  of 
seduction  within  two  years  previous 
to  the  finding  ef  the  indictment,  and 
not  to  be  within  the  statute.  ib 


SENTENCE. 

1 .  The  statute  requiring  the  court  to 
limit  the  time  of  sentence  of  a  con- 
vict, so  that  his  imprisonment  in  the 
state  prison   shall    expire   between 
March  and  November,  is  merely  di- 
rectory, and  a  failure  to  comply  with 
such  requirement    does   not   render 
the   sentence   void.     Miller  v.  Fin- 
Me,  374 

• 

2.  If,  by  inadvertence  in  passing  sen- 
tence, a  requirement  of  the  statute 
has  been  overlooked,  the  court  may 
correct  the  judgment   at    the   same 
term  and  before  the  sheriff  has  pro- 
ceeded to  execute  it.     Such  correc- 
tion may  be  made  by  expunging  or 
vacating  the  first  sentence  and  pass- 
ing a  new  sentence.  ib 

3.  The     disqualification     consequent 
upon  a  sentence   by  which  all  the 
civil  rights  of  the  person  sentenced 
are   suspended,   commences  as  does 
the  running  of  the  time  of  imprison- 
ment, from  the  moment  of  passing 
sentence.  ib 

4.  The  effect  of  vacating  a  sentence 
and  pronouncing  a  new  sentence  at 
the  same  term,  is  the  same  upon  the 
civil  rights  of  the  defendant,   as  if 
the  first  judgment  had  been  reversed 
on  error,  and  the  defendant  had  been 
again  convicted  on  a  second  trial 

ib 

5.  Where  a  defendant  was  sentenced, 
so  that  his  term  of  imprisonment  in 
the  state  prison  would  expire  in  De- 
cember, and  afterwards,  at  the  same 
term,  the  sentence  was  vacated  and 
a  new  sentence  was  pronounced  for 


INDEX. 


713 


a  shorter  term,  but  so  that  it  would 
expire  in  October,  and  the  defend- 
ant, after  the  first  sentence  and  be- 
fore the  second  sentence,  executed  an 
assignment  of  his  book  accounts  to 
another  person,  it  was  held  that  such 
assignment  was  valid.  ib 

6.  Sentence  of  death  pronounced  by 
Walworth,  circuit  judge,  upon  Nel- 
son Thayer,  Israel  Thayer,  Jr.,  and 
Isaac  Thayer,  at  the  Erie  Oyer  and 
Terminer,     in    April,    1825.       The 
People  v.  Thayers,  596 

7.  The  court  of  Oyer  and  Terminer. 
in   which  a  criminal  case  has  been 
tried  and  a  verdict  of  guilty  is  given, 
ought  not  to  delay  the  sentence  for 
the  purpose  of  having  the  decision 
reviewed    by   certiorari,    except  in 
cases  of  great  doubt  and  difficulty; 
in  other  cases,  the  defendant  should 
be  left  to  his  writ  of  error.     Colt  v. 
The  People,  611 

8.  Even  in  capital  cases,  it  can  sel- 
dom be  necessary  to  delay  the  sen- 
tence, the  governor  being  authorized 
in  these  cases  to  take  the  opinion  of 
the  attorney  general   and  of  all  the 
high   judicial  officers   of  the   state, 
before  he  permits  the  execution  of 
the  sentence,  and  to  suspend  the  exe- 
cution of  the  sentence,  that  the  case 
may  be  brought  before  the  Supreme 
Court  and  decided  on  a  writ  of  error, 
if  he  or  any  of  these  officers  enter- 
tain   any  doubt    as  to  the  legality 
of  the  conviction.  ib 

See  ATTEMPT  TO  COMMIT  CRIMES. 
CONVICTION,  3. 
FELONY,  3. 
JURISDICTION,  2. 


SUMMARY  CONVICTION. 

1 .  The  power  of  summarily  convict- 
ing offenders  being  in  derogation  of 
the  common  law,  must  be  strictly 
confined  to  the  special  statute  from 
which  its  force  is  derived.  The 
People  v.  Phillips,  95 

<.  The  restrictions  and  regulations 
relative  to  these  convictions  estab- 
lished by  the  higher  courts  in  Eng- 
land before  the  revolution,  were  de- 

VOL.  I.  90 


claratory  of  the  common  law,  and 
are  binding  in  this  state,  unless  they 
have  since  been  repealed  or  altered 
by  statute.  ib 

3.  A  record  must  be  made  up  in  every 
such  case  as  a  prerequisite  to  commit- 
ment; and  trespass  will  lie   against 
a  magistrate  who   commits  without 
having  so  done.     The  reasons  of  iu 
necessity  are: 

1.  For  protection  of  the  accused-, 
that  he  may  not  again  be  convicted 
of  the  same  offence. 

2.  For  protection  of  the  magis- 
trate: a  proper   record  being   corn- 
elusive  evidence  in  his  favor,  in  cases 
within  his  jurisdiction. 

3.  In  the  absence  of  an   appeal, 
the  only  mode  by  which  the  accused 
can  obtain  a  review  of  the  sentence 
is    by   habeas  corpus  or  certiorari 
founded  on  the  record.  ib 

4.  Greater   certainty   is    required   in 
such   records   than   in    indictments, 
because     they   are    taken    as    true 
against   the   accused;    and   nothing 
will    be   presumed   in   favor  of  the 
commitment,   but  the  presumption 
will  be  against  it.  ib 

5.  Although   there    is  no  jury   trial, 
proceedings  must  be  according  to  the 
course  of  the  common  law  in  trials 
by  jury.  i* 

6.  There  must  be  first  an  information 
or  charge,  and  the  defendant  must  be 
summoned  and  have  an  opportunity 
to  make  his  defence.  ib 

7.  The  evidence   in   support   of  the 
charge,  must  be  such  as  the  common 
law   approves,    unless   specially  di- 
rected otherwise  by  statute.  ib 

6.  There  must  be  a  conviction,  judg- 
ment and  execution,  all  according 
to  the  course  of  the  common  law.  t'6 

9.  The  record  is  designed  to  show  the 
regularity  of  the  proceedings,  and 
that  the  sentence  is  supported  by 
legal  evidence;  therefore,  everything 
necessary  to  support  a  conviction 
must  appear  upon  it.  It  must  set 
forth: 


714 


IXDEX. 


1.  The   particular   circumstances 
constituting   the    offence,    to   show 
that  the  magistrate  has  conformed  to 
the  law  and  has  not  exceeded  his  ju- 
risdiction.    A   mere   statement   of 
the  offence  in  the  terms  of  the  stat- 
ute is  insufficient. 

2.  The    plea   of   the    defendant, 
whether  confession  or  denial. 

3.  The  names  of  the  witnesses,  to 
show  their  competency. 

4.  That  the  evidence  was  given  in 
the  presence   of  the  accused,  that  it 
may  appear  he  had  the  opportunity 
of  cross-examination. 

5.  The  whole  evidence  both  for  pro- 
secution and  defence  so  far  as  appli- 
cable to  the  charge,   to  show  that 
every  material    allegation  was   sus- 
tained by  proof. 

6.  An  adjudication  of  the  guilt  of 
the  accused,  which    must    be  exact 
and   precise,  judgment  for  too  little 
being  as  bad  as  for  too  much.        ib 


T 

/* 

TREATY. 
Stt  FUGITIVES  FROM  JUSTICE. 

TRIAL. 

1.  Held,  that  upon  the  trial  of  an  in- 
dictment for  murder  when  death  has 
ensued,  the  accused  can  not  be  con- 
victed of  a  simple  assault  and  battery 
though  he  may  be  of  manslaughter. 
Burns  v.  The  People,  182 

2.  Where  two  or   more   persons   are 
jointly  indicted  for  felony  and  demand 
separate  trials,  they  have  not  a  right 
to   elect  which    defendant   shall  be 
tried  first.     The  People  v.  Mclntyre, 

371 

3.  The  order  of  the  trials  in  such  case 
is  within  the  control  of  the  district 
attorney,  subject  to  the  direction  of 
the  court ;  and  as  a  general  rule,  the 
court  should  not  interfere  to  compel 
the  district  attorney  in  regard  to  it. 

t'6 

4.  The  decision  of  the  court,  refusing 


to  direct  the  district  attorney  in  such 
case,  is  not  the  subject  of  review 
upon  exception.  tf 


5.  On  a  separate  trial  of  a  defendant 
jointly  indicted  with  a  codefendant 
for  felony,  such  defendant  can  not 
improve  his  codefendant  as  a  witness 
in  his  behalf.  Such  codefendant  is 
not  a  competent  witness  for  the  de- 
fendant on  trial  till  discharged  from 
the  record  by  nolle  protequi,  acquit- 
tal or  otherwise.  ib 

6.  It  is  a  matter  of  discretion  with 
the  court  to  allow  the  district  attor- 
ney to  try  prisoners  who  are  jointly 
indicted,  jointly  or  separately,  as  it 
seems  best  to  comport  with  the  ad- 
Aancement  of  justice;  and  the  court 
has  no  power  to  correct  any  error  in 
the  exercise  of  that  discretion  upon 
a  bill  of  exceptions.     The  People  v. 
Stockham.  424 

7.  That  discretion  may  be  exercised 
by  an  order  made  on  the  motion  of 
the  district  attorney,  as  well  as  on 
that      the  prisoner's  counsel.         ib 

8.  Writs  of  error  in  cases  not  capital, 
issue  of  course;  but  they  do  not  stay 
the  sentence,  without  an  express  or- 
der  to   that   effect    from    a   circuit 
judge,  or   a  judge  of  the  Supreme 
Court.     Colt  v.  The  People,       611 

9.  In  capital  cases,  no  writ  of  error 
can  be  issued  unless  allowed  by  the 
chancellor,  or  one  of  the  justices  of 
the    Supreme  Court,  or    a  circuit 
judge,  upon  notice  given  to  the  at- 
torney general,  or  to  the  district  at- 
torney of  the   county  in  which  the 
conviction  was  had;  and  it   is   the 
duty  of  the  officer  to  whom  the  ap- 
plication is    made,  to  disallow  the 
same,  if  he  has  no  reason  to  doubt 
the  legality  of  the  conviction.         ib 

10.  Where  at  the  Oyer  and  Terminer 
the  initiatory  proceedings  of  a  tria' 
for  murder  had  been  commenced 
calling  the  jurors  as  directed  by  la 
and  only  nineteen  of  the  jurors  ai> 
swered   to  their  names,  thereupon 
three  hundred  additional  jurors  wera 
summoned  by  the  sheriff  under  di- 
rection of  the   court,  and  the  court 
refused  to  delay  the  triaJ  for  two  or 


INDEX. 


715 


three  days,  as  requested  by  the  pri- 
soner's counsel,  to  enable  them  to 
examine  such  list  of  additional  ju- 
rors, it  was  held  that  the  question 
to  be  decided  on  such  application 
was  a  matter  of  discretion,  and  that 
no  exception  could  lie  to  such  refu- 
sal. Colt  v.  The  People.  611 

II.  Held,  also,  that  the  summoning  of 
so  large  a  number  of  additional  ju- 
rors was  a  matter  of  sound  discre- 
tion, to  be  exercised  by  the  court, 
with  a  view  to  get  a  sufficient  num- 
ber who  were  qualified  and  compe- 
tent, from  which  a  full  jury  could  be 
obtained;  and  that  such  discretion 
should  be  exercised,  upon  the  know- 
ledge which  the  court  possessed,  of 
the  probable  effects  which  a  report 
of  the  facts,  in  the  public  papers  and 
otherwise  might  have  had,  in  bias- 
ing the  minds  of  jurors,  so  as  to 
disqualify  them  from  serving  ou  the 
trial.  ib 

See  CHALLENGE  TO  JURORS. 


VAGRANCY. 

The  first  section  of  the  act  passed 
12th  April,l853  (Sess.  Laws  of  1853, 
page  353),  prescribing  and  author- 
izing a  general  form  for  a  record  of 
conviction  in  case  of  vagrancy  is  not 
unconstitutional.  Morrit  v.  The 
P&ple,  441 

Whether  the  second  section  of  that 
act  which  authorizes  a  discharge  be- 
fore the  expiration  of  the  term,  on 
an  order  jointly  made  by  the  com- 
mitting magistrate  and  one  of  the 
governors  of  the  almshouse,  is  not 
unconstitutional  and  void,  as  infring- 
ing upon  the  pardoning  power  vest- 
ed in  the  governor  by  the  constitu- 
tion, act  4,  sec.  5.  Quere?  ib 


w 

WARRANT  OF  EXECUTION. 
See  MURDER,  9. 


WITiVESS. 


1.  A  person  convicted  of  perjury  is  an 
incompetent  witness,  though  he  has 
been  pardoned  by  the  Governor 
and  the  pardon  purports  to  re- 
store him  to  all  his  civil  rights,  the 
legislature  having  provided  that  such 
convict  shall  not  be  received  us  a 
witness  till  such  judgment  be  re- 
versed. Such  is  the  law  though  the 
exclusive  power  to  pardon  be  vested 
in  the  Governor.  Houghtaling  v. 
Keldcrhouse,  241 

2.  Such  incapacity  to  testify  is  the 
result  of  a  rule  of  evidence  and  not 
a  punishment  of  the  offence.  td 

See  EVIDENCE. 


WRIT  OF  ERROR. 

1.  A  motion  to  set  aside  a  stay  of  pro- 
ceedings and  to  quash  a  writ  of  error, 
in  a  capital  case,   may  be  made  by 
the  district  attorney;  and  the  pri- 
soner'c  counsel  can  not  avail  himself 
of  the  oojection  that  such   motion 
should  have  been  made  by  the  attor- 
ney general.     Carnal  v.  The  People, 

262 

2.  A  justice  of  the  Supreme  Court  has 
power  to  allow  a  writ  of  error,  and 
to  make  an  order  staying  proceedings, 
after  conviction,  in  a  capital  case,   ib 

3.  The  mode  of  reviewing  a  decision  of 
the  Oyer  and  Terminer,  as  it  existed 
previous  to  the  adoption  of  the  Re- 
vised  Statutes,  compared  with  the 
present  practice.  ib 

4.  What  are  proper  considerations  on 
an  application  for  an  allowance  of  a 
writ  of  error  and  a  stay  of  proceed- 
ings, in  a  capital  case,  by  Edmonds, 
J.     Sullivan  v.  The  People,          347 

5.  In  determining  whether  a  writ  of 
error  should  be  allowed  and  a  stay 
of  proceedings  granted,    to  enable  a 
prisoner   to   review   before  the  Su- 
preme Court,  an  exception  t  tken  at 
the  Oyer  and  Terminer  on  a  trial  for 
murder,  it  is  not  necessary  that  the 
justice  to  whom  the  application  ii 


716 


INDEX. 


made,  should  arrive  at  the  positive 
conclusion  that  the  court  erred  on 
the  law;  it  is  enough  that  the  ex- 
ception is  not  deemed  frivolous, 
and  that  it  involves  a  gravely  im- 
portant question,  in  regard  to  which 
there  is  a  conflict  of  authority,  and 
which  remains  unsettled  by  the 
courts  of  this  state.  The  People  v. 
Hendrickson,  396 

Where  a  coroner's  inquest  was  held 
on  the  day  following  that  of  the 
alleged  murder,  at  which  the  pri- 
soner was  cJFled  by  the  coroner  as  a 
witness,  and  was  sworn  and  exam- 
ined by  him,  under  oath,  before  the 
coroner's  jury,  having  been  subpoe- 
naed to  attend  for  that  purpose,  there 
being  some  circumstances  tending  to 
show  that  the  prisoner  was  then 
suspected  of  the  murder,  though  no 
charge  had  then  been  made  against 


him,  and  in  the  subsequent  trial 
of  the  prisoner  at  the  Oyer  and  Ter- 
miner,  the  court  permitted  the  coun- 
sel for  the  people  to  give  in  evidence 
the  statements  made  by  the  prisoner 
on  such  examination,  it  was  held 
there  was  sufficient  doubt  of  the  cor- 
rectness of  the  decision  to  warrant 
the  allowance  of  a  writ  of  error  with 
a  stay  of  proceedings.  ib 

1.  A  writ  of  error,  for  the  purpose  of 
reviewing  a  final  judgment  of  the 
court  of  Oyer  and  Terminer,  is  a 
writ  of  right  and  brings  before  the 
Supreme  Court  the  bill  of  exceptions 
with  the  transcript  of  the  record. 
Saffbrd  v.  The  People,  474 

See  JUHISDICTION,  3 
JURY,  6. 
TRIAL,  8,  9. 


END  OF  VOLUME  ONE. 


QC.I  70  " 


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